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2007 DIGILAW 293 (MP)

SATYENDRA KUSHWAHA v. JITENDRA KUMAR

2007-03-13

DIPAK MISRA, R.K.GUPTA

body2007
Judgment ( 1. ) THIS appeal is preferred under Section 30 of the Workmens compensation Act, 1923 (for short the Act) against the award dated 25-10-2002 passed in Claim Case No. 48/2002 (Non Fatal) by the Commissioner for Workmens Compensation- (Labour Court), Jabalpur. The Commissioner by the said order has awarded a sum of Rs. 1,77,550/- towards compensation. ( 2. ) THE facts Leading to the present case are that the present appellant was employed as Conductor in Truck No. 20- G/1675 on 12-3-2002 when the truck was going from Jabalpur to Gotegaon for loading grains. Suddenly one tyre got punctured. The present appellant being the conductor fixed the jack for changing the tyre but the jack slipped from its position. As a result of which the left hand of the present appellant was pressed and got fractured. The present appellant at the time of accident was aged about 21 years and was getting salary @ 4000/- per month. ( 3. ) THE claim of appellant is that injuries, which were sustained by him were of permanent in nature, therefore he filed a claim before the commissioner for workmens compensation. The claim was preferred on the ground that he has rendered 100% unfit for the job of conductor, therefore it was a case of 100% disability and accordingly claim was filed before the commissioner and the evidence was adduced. ( 4. ) THE claimant submitted that he was admitted for 20 days in Suvidha hospital, Jabalpur and Dr. P. K. Dang was examined to prove the earning capacity. The Commissioner on assessment of the evidence came to the conclusion that three fingers of one hand had been affected and there was a disability of 35% with regard to the permanent disability. The Commissioner came to the conclusion that the claimant has not been able to perform duties of the contractor, which he was performing prior to the date of accident. In paragraph 8 of the award the Commissioner also discussed about the evidence of Dr. P. K. Dang, who has examined the claimant/appellant. Doctor stated that the claimant has lost grip capacity of three fingers but other parts of the hands are functional. The Tribunal on assessment of the evidence came to the conclusion that the claimant has sustained 35% of the permanent disability and accordingly directed for payment of compensation. The total compensation was assessed to Rs. 1,77,550/ -. Doctor stated that the claimant has lost grip capacity of three fingers but other parts of the hands are functional. The Tribunal on assessment of the evidence came to the conclusion that the claimant has sustained 35% of the permanent disability and accordingly directed for payment of compensation. The total compensation was assessed to Rs. 1,77,550/ -. ( 5. ) THE learned Counsel for the appellant submitted that there had been sufficient evidence on record particularly the medical evidence on which basis it is fully established that the claimant is not able to perform the work of contractor. It is contended by the learned Counsel for the appellant that it is a case of 100% disablement, therefore, the Commissioner erred in allowing only 35% of permanent disability of the claimant and accordingly in the present case the amount of compensation deserves to be enhanced. ( 6. ) ON behalf of the respondent it is contended that since the present appeal has been preferred under Section 30 of the Workmens Compensation act, 1923, therefore, the appeal has to be entertained if any substantial question of law arises. It is his submission that in the present case no substantial question of law arises. It is also contended that the assessment of the disability of the present appellant @ 35% is based upon the medical evidence, therefore no further interference for enhancement is required as the award has been passed in accordance with law. ( 7. ) THE submissions of the learned Counsel for the parties are considered. The doctor who is examined as a witness before the Commissioner has specifically stated that the appellant has only lost the grip of three fingers of one hand and the other parts of the same hand are functional. The nature of the injury which has been sustained by the appellant is not a scheduled injury covered by Schedule 1 of the Workmens Compensation Act, 1923. The loss of three fingers of one hand in case of amputation is a schedule injury and the 30% of loss of earning capacity is provided under Schedule 1. The present case is not a case of loss of three fingers of one hand therefore it cannot be treated to be schedules injury. ( 8. The loss of three fingers of one hand in case of amputation is a schedule injury and the 30% of loss of earning capacity is provided under Schedule 1. The present case is not a case of loss of three fingers of one hand therefore it cannot be treated to be schedules injury. ( 8. ) THE note appended to Schedule 1 of the Act states that complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent to the loss of that limb or member. On that basis once the injury is not a scheduled injury then the assessment of the percentage of loss has to be taken if there is a permanent loss and then such loss shall be treated to be lost that limb or member. There is no loss of limb or member by way of amputation of three fingers of one hand, therefore the percentage of loss of earning capacity has to be assessed in the light of the medical evidence. The Commissioner in Paragraphs 7,8 and 13 has discussed the nature of injuries and percentage or loss of earning capacity. The statement of dr. P. K. Dang was relied upon by the Commissioner, who has stated that there is a loss of grip of three fingers but other part of the same hand are functional. He stated that claimant is not in a position to perform his routine and day to day work therefore on that basis of the Commissioner came to conclusion that it is a case of 35% of the loss of earning capacity. The injury was sustained by the appellant in his left hand. This has to be further seen that when the claimant has lost grip of three fingers of right hand then it could be said to be case of 100% disablement. The claimant examined himself before the Commissioner and in his deposition he has not stated that due to loss of grip of three fingers of left hand he is not able to perform any other work. It is the burden of the claimant to prove that he been totally incapacitated to perform the work he was performing earlier so that it could have been treated to be a case of loss of 100% earning capacity. ( 9. It is the burden of the claimant to prove that he been totally incapacitated to perform the work he was performing earlier so that it could have been treated to be a case of loss of 100% earning capacity. ( 9. ) THE claimant was the person who was working as conductor in a truck and sustained injuries in his left hand. This Court has to believe that the claimant is able to perform his work from right hand, which has not sustained any injuries. The right hand of the claimant is still functioning no injuries were sustained in that hand therefore keeping in view the aforesaid statement. This Court does not find that there had been complete loss of three fingers of one hand so that permanent earning capacity as per Schedule 1 could be assessed to 30%. In the present case, the Commissioner has granted the compensation up to the extent of 35%. Admittedly in the present case the injuries was in the three fingers of the left hand. The Commissioner on the basis of medical assessment came to the conclusion that it is a case of 35% loss of earning capacity. As this Court has already discussed earlier that in case of amputation three fingers of one hand, there would be loss of 35% earning capacity as per Schedule 1, the Commissioner in the present case has granted the amount beyond the Schedule by accepting medical evidence. The same does not warrant and interference. ( 10. ) IN view of the above the appeal is without any substance and is hereby dismissed. There shall be no order as to costs. Misc. Appeal dismissed.