This Civil Miscellaneous Appeal has been filed by the workman seeking enhancement of compensation awarded by the Commissioner, Workmen Compensation in W.C.Case No.128 of 2014.
2. The fact that the appellant was working as Centring Carpenter in the site of the first respondent is not denied. Similarly, the fact that there was an accident on 23.10.2013 at about 3.15 p.m, as a result of which, the appellant lost all the five fingers in his right hand and sustained fractures in the fingers in left hand is also not denied. It is also not in dispute that the five fingers in the right hand have been amputated and due to the fractures the fingers in the left hand are bent.
3. The Commissioner, Workmen Compensation based on the evidence of the Doctor fixed the loss of earning capacity at 65% and awarded a compensation of Rs.5,97,843/-. Aggrieved by the same, the Workman has come up with this appeal.
4. Head Mr.K.A.Ravindran, learned Counsel appearing for Mr.S.A.Shanmugaraj for appellant and Mr.C.Ramesh Babu, learned counsel appearing for the second respondent - The New India Assurance Company Ltd. The first respondent remained ex-parte and he had not entered appearance.
5. Mr.K.A.Ravindran, learned counsel appearing for the appellant would submit that the appellant, being a carpenter having lost his five fingers in his right hand, has been permanently disabled from doing the work of carpenter in future. Therefore, according to the learned counsel the accident has resulted in total disablement within the meaning of
section 2(l) of the Workmen's Compensation Act. The learned counsel would further contend that the compensation payable in the case of total disablement should have been assessed under section 4(1)(b) of the Act and not under
section 4(1)(c).6. Per contra Mr.C.Ramesh Babu, learned counsel appearing for The New India Assurance Company Ltd., would submit that under the
Section 4(1)(c) of the Workmen's Compensation Act, the compensation loss of earning capacity should be fixed on the basis of percentage fixed under the Schedule and the Workmen Compensation Commissioner has rightly fixed the loss of earning capacity at 65%, taking into account the injuries suffered by the appellant with reference to the Schedule.
7. In the light of the above contention, the following substantial question of law arises for determination of this appeal :
Whether in the case of the total disablement, the Court is bound to grant only the percentage of disability as fixed by the Schedule of the Act?
8. The facts are not in dispute. It is not in dispute that the appellant, who was a carpenter, cannot do the job of carpenter any more. The
Section 2(l) of the Workmen Compensation Act defines the total disablement as follows :
Total disablement means such disablement, whether of a temporary or permanent nature, as incapabilities a workmen for all work which he was capable of performing at the time of the accident resulting in such disablement.
Section 4(1)(b) provides that if permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured worker multiplied by relevant factor would be appropriate compensation.
9. The Commissioner, Workmen Compensation has not adverted to the fact that the injury resulted in total disablement. He has straight away gone ahead and fixed the compensation on the basis of the Schedule of the Workmen Compensation Act. The Doctor has deposed that the appellant cannot continue to do the work of carpenter. It is common knowledge that a carpenter cannot do his work without five fingers in one hand. Therefore, the fact that the injury has resulted in total disablement as contemplated under 4(1)(b) of the Act is obvious.
10. Under such circumstances, what would be the amount of compensation payable to the workman was considered by the Hon'ble Supreme Court in Pratap Narain Singh Deo V. Shrinivas Sabata and another reported in 1976 ACJ 141. The Hon'ble Supreme Court had an occasion to consider the similar case of a carpenter, whose hand was amputated above the elbow. Considering the definition of total disablement, under
section 2(l) of the Act, the Hon'ble Supreme Court concluded that such a disablement, which prevents the Workmen from continuing the work, which he was capable of doing on the date of accident would be considered as 100% disability. The Hon'ble Supreme Court in para 5 of the said judgment has observed as follows:
5. The expression total disablement has been defined in
section 2(1)(l) of the Act as follows:
(1) total disablement means such disablement, whether of a temporary or permanent nature, as incapabilities a workmen for all work which he was capable of performing at the time of the accident resulting in such disablement. It has not been disputed before us that the injury was of such nature as to cause permanent disablement to the respondent, and the question for consideration is that whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows:
"The injured workman in this case is carpenter by profession.... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only."
This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 1/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.
11. The learned counsel appearing for The New India Assurance Company Ltd, however, invites my attention to the judgment of the Hon'ble Supreme Court in Lal Singh Marabi V. National Insurance Co. Ltd., and others reported in 2017(1) TN MAC 743, where the Hon'ble Supreme Court had taken percentage of disability at 90% for a driver who has lost his left leg above the knee.
12. Contending that the Hon'ble Supreme Court had not chosen to conclude in the above said judgment that there was total disablement under
section 4(1)(b) of the Act, the learned counsel would submit that in the present case also the injury sustained by the appellant has not resulted in total disability. From the report, I am unable to find out that there was such contention raised before the Hon'ble Supreme Court that there was total disablement. The only question that was argued is that the Doctor has fixed disability at 90% but the Tribunal has wrongly taken it at only 60%. The Hon'ble Supreme Court had no occasion to consider whether injury resulted in total disablement under
section 2(l) of the Act.
13. In view of the above discussions, the substantial question of law raised is answered in favour of the appellant and the appellant would be entitled to a compensation as per
section 4(1)(b) of the Act ie., 60/100x197.06x7779=9,19,757/- instead of Rs.5,97,543/- granted by the Commissioner. The Workman will also be entitled to interest on the enhanced compensation amount from 30 days after the date of the accident ie., from 23.11.2013 till the date of realization.
R.SUBRAMANIAN,J.
dsa
14. Hence, the above appeal is partly allowed and the compensation is enhanced to Rs.9,19,757/-. However, there be no orders as to costs.
04.08.2017 dsa To
1.The Deputy Commissioner of Labour II, Chennai 6.
2.The New India Assurance Company Ltd., B.R.Compled, No.28/29, Woods Road, Chennai 2.
C.M.A.No.2475 of 2016