JUDGMENT Prakash Krishna, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act at the instance of the Insurance Company against the injured respondent No. 1 contending that the judgment and award of the Commissioner of Workmen's Compensation Act dated 26th of April, 1994 passed in W.C. Case No. 22 of 1992 is not correct. In the memo of the appeal only two grounds have been taken. It was contended that the medical opinion clearly proved that the injury received by the respondent No. 1 caused 40% disability, the Tribunal committed illegality in awarding the compensation treating the said injury has caused 100 per cent disability. The second ground raised is that the Tribunal committed illegality in granting the compensation without deducting the monthly earning Rs. 600 which was admittedly being earned by the respondent No. 1 after the accident. The Workmen's Compensation Commissioner has awarded a sum of Rs. 81,740 as compensation treating the injury caused to the respondent No. 1 as non-scheduled injury.
2. The brief facts which led to the filing of the appeal are as under :
The injured claimant who is respondent No. 1 was working as a driver in Truck No. URY 440 and was getting Rs. 800 per month as salary and Rs. 400 as allowances while in the employment of the present respondent No. 2. On 4th of October 1990 the claimant was driving the aforesaid truck carefully and with a modest speed met with the accident while going from Raksha and when the truck reached at Sipari Bazar a truck coming from the opposite direction dashed the truck which was being driven by the claimant respondent No. 1. The claimant-respondent No. 1 tried to avoid the accident and it hit the electric pole with the result he received injuries. Two fingers of his left hand have to be amputated and the said hand has become useless and he has become unfit for driving work.
3. The present appellant who was the respondent No. 2 before the Workmen's Compensation Commissioner did not produce any oral or documentary evidence and remained ex parte after filing of the written statement. The claimant- respondent produced the evidence in support of his pleas including medical evidence. The Chief Medical Officer, Jhansi after examining the claimant-respondent No. 1 gave a certificate dated 5.5.1993 certifying that the respondent No. 1 has suffered permanent total disablement with the result of the injuries sustained by him in the accident dated 4.10.1990 to the extent of 40 per cent.
4. On appreciation of the material on record, the Commissioner came to the conclusion that there is total permanent disablement of 100 per cent and having regard to the age of the injured at 32 years and taking into consideration the monthly salary of Rs. 800 awarded the compensation at Rs. 81,540.
5. Aggrieved against the said order the present appeal has been filed mainly on the ground questioning the amount of compensation awarded by the Commissioner.
6. Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant has placed reliance upon the following rulings :
(1) Divisional Manager, Oriental Insurance Company Limited v. Basanta Kumar Sahoo, 2000 LIC 1773 (Ori) ;
7. On the strength of the above rulings it was submitted strenuously by the learned counsel for the appellant that in view of the medical evidence certifying 40 per cent permanent partial disability, the Commissioner committed an error of law in granting the compensation treating permanent partial disablement to the extent of 100 per cent and that the claimant-respondent No. 1 is presently engaged and is earning Rs. 600 per month, the said amount should be deducted while calculating the compensation to be awarded under the Act.
8. In contra the learned counsel for the respondent submitted that it was a case of 100 per cent permanent partial disablement. The injured workman was a driver of heavy vehicle. After the accident he is unable to do the said job. Earning is not same as earning capacity ; loss of physical capacity is not co-extensive with the loss of earning capacity. He has placed reliance upon the following cases in support of his argument :
(1) Rayapati Venkateswar Rao v. Mantai Sambasiva Rao, 2001 (1) TAC 772 (AP) ;
(2) National Insurance Company Limited v. Krishna Mehta and Anr., 2003 (2) TAC 381 (All) ;
(3) National Insurance Company Limited v. Bhagwan Behera, 2003 (2) TAC 582 (Ori) ;
(4) New India Insurance Company Limited v. Mohammad Aslam and Anr., 2003 (3) AWC 1982 : 2003 (3) TAC 20 (All) ; and (5) G.V. Venkatesh Babu and Anr. v. Krishna Kumar, 2002 (3) TAC 64 (Kar).
9. Section 2(i)(g) of the Workmen's Compensation Act defines the 'partial disablement'. It has two limbs. The statute contemplates the partial disablement of a temporary nature and partial disablement of a permanent nature. Section 2(i) of the Act defines total disablement. Total disablement means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for a work which he was capable of performing at the time of the accident resulting in such disablement ; provided that the permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries in Part II thereof. The test to determine is incapacity of the workman to perform all works which he was capable at the time of accident.
10. Before the Supreme Court in the case of Pratap Narain Singh Deo v. Shriniwas Sahata and Anr., AIR 1976 SC 222, a question arose whether a workman who was a carpenter by profession having sustained amputation of his left arm from the elbow suffers from total permanent disablement or partial permanent disablement. The finding recorded by the Workmen's Compensation Commissioner was that by loss of left hand above the elbow, he has evidently been rendered unfit for the work of carpenter and the work of carpentry cannot be done by one hand only. The Supreme Court has held that as the workman cannot do carpentry, the loss of his earning capacity is 100 per cent.
11. Great emphasis was laid by the learned counsel for the appellant that the Commissioner committed illegality in holding that it is a case of 100 per cent loss of earning capacity. Elaborating the argument it was submitted that the Commissioner has no jurisdiction to ignore the medical evidence of the doctor. Reliance was placed upon New India Insurance Company Limited v. Sanjit Kumar, 2000 LIC 3809. In this case it has been observed that loss of earning capacity is to be assessed by a qualified medical practitioner and it cannot be said to be a mere formality.
Para 4 is relevant and is quoted below :
"The Workmen's Compensation Act provides the mode and method to determine the compensation. The Court cannot adopt some mode or method which is not provided in the Act. In the appreciation of the award quoted above, the Court determined the percentage of loss of earning capacity at 50%. That power is not available with the Commissioner, so, this award shall stand quashed and the matter now shall go back to the Commissioner to assess the compensation afresh and in order to do that, he may even ask the doctor to appear before him and give his opinion with regard to the percentage of loss of earning capacity."
12. On the same proposition the other cases referred to above were relied upon by the learned counsel for the appellant. Section 4(1) of the Act provides the mechanism for determination of amount of compensation. Clause (c) of Section 4(1) is relevant for the purpose of the present case :
"Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :
(a) xxxxxxx
(b) xxxxxxx
(c) where permanent partial disablement results from the injury :
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury."
13. A Division Bench of this Court in the case of New India Assurance Company Limited v. Mohammad Aslam (supra), has considered this controversy. The relevant paragraphs No. 7, 8 and 9 thereof are quoted below :
"The learned counsel for the appellant has strenuously urged that in the circumstances of the case, since the injuries of the nature suffered by the injured workman are not indicated in the list of injuries which are deemed to result in permanent total disablement as provided under Schedule I, Part I of the Act, the Workmen's Compensation Commissioner could not, in the absence of the certificate contemplated under Section 4(c)(ii) issued by a qualified Medical Practitioner, assess the extent of disability to be 40 per cent. It is asserted that in the present case, the injured workman apart from bringing on record the injury report and the X-ray report, had not filed a certificate in regard to the proportional loss of earning capacity. The contention is that the Workmen's Compensation Commissioner, in such a situation had no jurisdiction to assess the percentage of disability on account of the nature of the injuries.
So far as the aforesaid aspect of the matter is concerned, it cannot be lost sight of that it is so far the Workmen's Compensation Commissioner to accept or not to accept the report of the Medical Practitioner. The report of the medical practitioner in the matter relating to the assessment of the earning capacity on account of the injuries received by the workman is only to furnish a data on the basis of which a conclusion can be reached by the Workmen's Compensation Commissioner.
However, in a case where the workman concerned has brought on record the details of the injuries and their effect on the normal functioning of the human body, the extent of the loss of earning capacity can be reasonably, assessed. The Workmen's Compensation Commissioner cannot be said to have acted in an unauthorised manner, in case he embarks on his own assessment about the nature of injuries and the resultant extent of the disability.
In the present case on the evidence brought on record in regard to the nature of the injuries and their effect the Workmen Compensation Commissioner could safely act and determine the extent of disability. The discretion exercised by the Workmen Compensation Commissioner holding the disability to be only 40%, taking into consideration the nature of the injuries and its effect and impact on the body of the injured workman, cannot be held to be arbitrary."
14. In the case of National Insurance Company v. Krishna Mehta (supra), the claimant-respondent was a driver of vehicle and on account of accident has suffered injuries resulting in permanent disability to the extent of 40 per cent. The doctor who examined the claimant certified that the claimant had suffered 40 per cent disability in the leg and also that he will not be able to drive the vehicle in future. On these facts the Commissioner treated this as 100 per cent disability. The award of the Commissioner was confirmed by the Division Bench in the aforesaid case.
15. In the case of G.V. Venkatesh Babu v. Krishna Kumar (supra), the workman was a loader in lorry sustained grievous injuries. The doctor assessed loss of earning capacity at 55 per cent. The Commissioner concluded that injured suffered total permanent disablement of 100 per cent. The Karnataka High Court after considering the decisions of the various High Courts has come to the conclusion that he claimant was not able to do work for which he was employed in the lorry, it confirmed the award of the Commissioner taking into consideration the disability of the workman injured as 100 per cent.
16. The case of Rayapati Venkateswar Rao v. Mantai Sambasiva Rao (supra), is a case of cleaner of lorry who sustained compound fracture to his right leg and the steel rods were inserted during operation. The doctor's evidence established that he has sustained 20-25 per cent physical disability and cannot perform the duties as a cleaner. It was held that once workman was incapacitated and unable to perform his duties what he was doing on the date of accident, he loses his earning capacity by 100 per cent even though the physical disability was 20-25 per cent. A number of judgments of various High Courts have been considered and in para 11 it has been held as follows :
"So following the decision cited (supra) and in view of the fact that the appellant cannot perform the same duties as he was performing on the date of accident, I am inclined to hold that the applicant lost his 100 per cent earning capacity and he is entitled for 100 per cent compensation."
17. Reverting to the facts of the present case the Commissioner has observed in the award that he referred the matter to the Transport Officer for physical examination of the claimant-respondent No. 1. The Transport Officer after physical examination of the claimant-respondent No. 1 has certified that the claimant-respondent No. 1 is totally unfit to drive the heavy vehicles. Thus, it is a case of total loss of earning capacity of the claimant-respondent No. 1. The injuries suffered by the claimant-respondent No. 1 are non-scheduled injuries. From the several decisions referred to the above it is clear, ultimately one has to look into the actual avocation that is carried on by the workman claimant and assess the loss of earning capacity. The total disablement has to be arrived at from the point of view of the job of workman was being carried on at the time of the accident. The Division Bench judgment of this Court given in the case of National Insurance Company Limited v. Krishna Mehta (supra) is binding on me and is also in the line of the Supreme Court's judgment in the case of Pratap Narain Singh Deo (supra), and I respectfully dissent with the judgment of the Orissa High Court in the case of Divisional Manager, Oriental Insurance Company Limited v. Basanta Kumar. Moreover, in the case of Divisional Manager, Oriental Insurance Company Limited v. Basanta Kumar and P. Gopala Pillai (supra), (Orissa and Kerala) are distinguishable on the facts. The judgment of the Kerala High Court is with respect to the injuries specified in the Schedule as is clear from para 11 of the said judgment. The judgment of the Orissa High Court is based upon the fact that doctor's evidence was short of requirement of Section 4(1)(a) (II) Explanation II of the Act.
18. The other judgment of this Court in the case of Mohd. Yakub v. U.P.S.R.T.C., is by a learned single Judge. There is not much discussion in the said judgment. No law has been discussed. As such I prefer to rely upon the Division Bench's judgment of this Court and not upon the judgment of learned single Judge. Therefore, there is no fault in the order of the Workmen's Compensation Commissioner in holding that there is 100 per cent loss of earning capacity of the claimant-respondent No. 1.
19. Before parting with this appeal it is relevant to notice one fact which emerges from the record. The stamp reporter vide its report dated 28th July, 1994 reported that the certificate of the Commissioner has not been filed. The appeal was registered as a defective appeal No. 108 of 1994. It appears that non-filing of certificate of Commissioner was not brought to the notice of the Court and the appeal was got admitted on 29th July, 1994. A conditional stay order was also passed on the same date staying the operation of the execution of award on deposit of 50 per cent of the decretal amount within a period of 6 weeks. The deposit was required to be made in the High Court to be transmitted to the Workmen's Compensatton Commissioner, Jhansi with liberty to the claimant-respondent No. 1 to withdraw half of the amount deposited without furnishing any security and other half after furnishing security. I could not find on record the certificate of the Commissioner to the effect that the appellant has deposited the amount payable under the order impugned in appeal as provided under the 3rd proviso to Section 30(1) of the Act. In absence of certificate by the Commissioner the appeal itself is not maintainable and is liable to be rejected. Depositing the amount of compensation and producing the certificate of such deposit are prerequisites for presenting the memorandum of the appeal. Omission to comply with this prerequisite renders the appeal invalid and cannot be regarded as a mere irregularity. It was the duty of the counsel of the parties to bring these facts to the notice of the Court. This defective appeal was converted into a regular first appeal from order and allotted it a new appeal number in the year 2003.
20. The appeal is dismissed with costs.