P.R. Borkar, J.
1. This appeal is preferred by the original claimant, whose application for compensation under the Workmen's Compensation Act, 1923 bearing No. W.C.A. No. 10 of 1985 was dismissed by the learned Commissioner under the Workmen's Compensation Act and the Judge, Labour Court, Latur on 2.9.1991.
2. It is case of the applicant/appellant that respondent No. 2 had undertaken a contract of construction of compound wall of Tehsil Office, Nilanga from respondent Nos. 3 and 1. On the date of accident, i.e. 16.9.1983 the appellant was engaged as a labourer on mixture machine supplied by respondent No. 3 to respondent No. 2. While working, suddenly pant of the appellant got caught in the machine and the genital organ of the appellant was crushed in the machine, because of which he fell down and became unconscious. Immediately opponent No. 2 and others removed him to the hospital at Nilanga and then he was taken at Government Hospital, at Latur and then admitted as an indoor patient in the hospital at Ambajogai. The injury resulted in permanent disablement. The applicant was indoor patient for 43 days and, therefore, he filed an application for compensation of Rs. 20,000/-. He also claimed penalty amount of 50 per cent on the compensation amount.
3. The respondents denied the responsibility. They denied that the appellant was employed by respondent No. 2 and the accident had arisen out of and in the course of employment. It is stated that no work was in progress. The mixture machine was being cleaned and the appellant himself was negligent in going voluntarily near the machine. It is denied that there was any disablement.
4. The learned Commissioner held that the appellant was engaged by the respondents at the relevant time and the injury had sustained in an accident out of and in the course of employment with the respondents. However, the learned Commissioner held that the respondents are not liable as no disability, partial or permanent had arisen. The claim was wrongly filed under the Workmen's Compensation Act. In para 9 it is observed that the injury in question was not covered by any of the 48 items enumerated in Schedule I of the Workmen's Compensation Act, 1923 (hereinafter referred to as, 'the W.C. Act') and Section 4(1)(c)(ii) of the W.C. Act would be applicable. There was no satisfactory evidence regarding disablement which can be said to be permanent disablement within the meaning of provisions of the W.C. Act. It is not proved that the appellant has any difficulty in discharging his duties due to injuries sustained. Reference was made to the case of State of Gujarat v. Rajendra Khodabhai Deshdia and Ors. 1991 2 C.L.R. 582 and ultimately the application was rejected.
5. The learned advocate for the appellant argued that what is relevant is not whether the appellant has suffered any financial loss as a result of injury, but whether he suffered loss of earning capacity. Reliance was placed on ratio laid down in Management of Tamil Nadu Cement Corporation Limited v. N. Jaypalan 1994 (1) T.N.C. 530. In that case, it is held that the percentage of permanent disability as fixed by doctor is a proper guide to assess damages by the court. However, in that case it is also observed that the medical evidence is not the conclusive proof for the loss of earning capacity. It is also held that continuous employment and payment of higher salary even after accident is no ground to disentitle workman for any damages on account of permanent disability suffered by him.
6. The learned advocate for the appellant pointed out the medical certificate dated 26.8.1991 produced by the appellant. It was issued by doctor of Saint Dnyaneshwar Hospital, Latur. He is a private doctor. No doubt certificate is in form COMP'B'. Therein doctor said that he had examined the appellant on 15.8.1991 and appellant informed that he suffered accidental injuries on 17.9.1983 and was admitted in hospital from 17.9.1983 to 30.10.1983 and treated as indoor patient. The doctor found 90 per cent disability due to impotency.
7. Admittedly impotency is not an item enumerated in Schedule I of the W.C. Act. In other words, it is a non-scheduled injury. If we have regard to the scheme of the W.C. Act, it is clear from Section 4 that in case of a schedule injury the minimum of compensation which the workman would be entitled to claim would be commensurate with the deemed loss of earning capacity as indicated in the Schedule. In cases where the workman received non-scheduled injury he will have to show by leading evidence as to what is the loss of earning capacity suffered by him on account of accident. Section 4(1)(c)(ii) is as follows:
4. Amount of compensation: (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:..
(c) where permanent partial disablement results from the injury....
(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;..
8. In this case the certificate dated 26.8.1991 is of doubtful nature. There is clear attempt to exaggerate injury and conceal truth on the part of the appellant. The appellant in his statement at Exh.36 stated in para 5 that he has only one son. He is not having any issue after the accident. There were two holes in his sex organ due to which urine passes from both holes. Till the date of his deposition on 3.5.1991 he was taking private treatment. The doctor advised him to undergo further operation. He was unable to get any issue from his wife because he cannot have complete intercourse. There is no certificate showing that any doctor has advised appellant to undergo further operation. The appellant has produced one injury certificate at Exh. 4/1. It is issued by the Reader in Surgery of the Swami Ramanand Teerth Rural Medical College, Ambajogai It is mentioned therein that the appellant has received penoscrotal injury. He was admitted in hospital for 43 days from 17.9.1983 to 30.10.1983. It may be noted that 90 per cent disablement certificate dated 26.8.1991 is not issued by the doctor of the S.R.T.R. Medical College, Ambajogai, but by a private doctor who had not treated the appellant and who gave injury certificate after period of 8 years. The appellant produced two medical bills dated 25.11.1983 and 28.11.1983 of Rs. 5.56 and Rs. 12.24 respectively. The appellant has produced discharge card. issued by the S.R.T.R. Medical College, Ambajogai with list Exh.46. The discharge card diagnoses injury as penoscrotal injury. The discharge card states that on 17th September under anaesthesia thorough cleaning and debridment of wound was done. Wound was examined. There was corpora cavernosum and rupture of urethra. No skin was found over penis and both testis were open. Catheter was put. Scrotum was sutured by covering both testis. On 6th October skin grafting was done over penis. At the time of discharge patient was healthy. There was raw area over some part of penis. Urethra opening was minimum and some medicines were prescribed. So it is not true to say that there were two holes in the penis and urine was passing through said holes. There is nothing on record to show that any private treatment was taken after the discharge on 30.10.1983.
9. So far as impotency is concerned, the learned Commissioner has rightly observed in para 12 that in his deposition the appellant stated that he has one son. However, along with list Exh.46, a certificate issued by Sarpanch, Grampanchayat, Limbala, Taluka Nilanga, District Latur is produced. The said certificate dated 28.8.1991 states that the appellant has two children,one son and one daughter. The daughter was born on.... Hence certificate was given. The very omission of date of birth in the blank space raises a serious doubt whether the daughter was born on a date which would falsify the claim of the appellant that he had become impotent as a result of the accident. There is no reason for the Sarpanch to keep blank space regarding date of birth of daughter in the certificate. The appellant did not state that he has daughter. Thus he concealed material circumstance. The appellant admitted in para 9 of his cross-examination that he had not obtained any certificate to establish his incapacity to bear a child due to accident. This statement was recorded on 3.5.1991 and thereafter, the medical certificate dated 26.8.1991 was produced regarding impotency.
10. Dattatraya Narsing Mane is witness examined by the appellant at Exh.47. Dattatraya claimed to be of village Limbala, the village from which appellant hails. Dattatraya in his examination-in-chief stated that applicant/appellant has two sons; whereas in his cross-examination he stated that the appellant has one son and one daughter.
11. All abovesaid circumstances clearly raise doubt regarding truth of the medical certificate dated 26.8.1991 regarding impotency and disability to the extent of 90 per cent. The doctor who issued said certificate is not examined. He has not explained how impotency would affect the earning capacity of the appellant. In these circumstances, the learned Commissioner did not commit any error in holding that there was no permanent partial disability to the appellant.
12. Sub-sections 2(g) and 2(l) of Section 2 of the W.C. Act define 'partial disablement' and 'total disablement' as follows:
2. Definitions: (1) In this Act, unless there is anything repugnant in the subject or con text,-..
(g) 'partial disablement' means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time:
Provided that every injury specified in [Part II of Schedule I] shall be deemed to result in permanent partial disablement;..
(l) 'total disablement' means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement;
[Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;]..
Thus under the scheme of the W.C. Act, the disablement of workmen can be classified into 4 categories:
(1) Total temporary disablement;
(2) Total permanent disablement;
(3) Partial temporary disablement; and
(4) Partial permanent disablement.
Secondly it is clear from the definitions that the terms are defined not with reference to physical disablement as such, but with reference to the earning capacity of the injured. As stated by the appellant when his statement was recorded, he was working as a peon in Janata Sahkari Bank, branch at Limbala. There is nothing to show that he was earning less. There is no medical certificate to show that alleged disablement of impotency has affected the earning capacity of the appellant totally or partially.
13. However, as the certificate produced at Exh.4/1 issued by the Reader in Surgery, S.R.T.R. Medical College, Ambajogai shows the appellant was indoor patient for 43 days. So there was total temporary disablement for 43 days and, therefore, as per Section 4(1)(d) of the W.C. Act, compensation ought to have been paid to the appellant. Clause (d) of Section 4(1) of the W.C. Act is as follows:
(d) where temporary disablement, whether total or partial, results from the injury - a half monthly payment of the sum equivalent to twenty-five per cent of monthly wages of the workman, to be paid in accordance with the provisions of sub-section (2)...
14. It is stated before this court that respondent No. 2 incurred expenses of treatment. There is nothing on record to show that the appellant incurred any expenses other than two medical bills which are produced on record. So considering Sub-section (d) of Section 4 and the fact that for 43 days the appellant was in hospital, it can be said that appellant was entitled to compensation at the rate of Rs. 7.50ps. per day for 45 days which comes to Rs. 300/-. The respondents did not pay this amount and, therefore, the respondents under Section 4-A of the W.C. Act are liable to pay penalty as well as interest. 50 per cent penalty would come to Rs. 150/-. The rate of interest was earlier 6 per cent per annum as per Section 4-A(a)(a) till amendment by Act 30 of 1995 which came into force on 15.9.1985 and thereafter it was 12 per cent per annum. So considering the amount of interest that would be payable and considering the financial status of the appellant, I am inclined to award some token cost as in addition to compensation amount. Since the applicant/appellant had not only to contest the litigation before the Commissioner under Workmen's Compensation Act, but also had to approach this court, I am inclined to award costs. However, the appellant has also resorted to falsehood and has suppressed material truth from the court so far as permanent disablement is concerned.
15. Considering the totality of the circumstances and that the amount that is due, penalty and interest payable thereon and the costs which the appellant might have incurred by this time, I quantify total amount payable to the appellant at Rs. 5,000/-. Primarily it is respondent No. 2 who had engaged the applicant/appellant as a labourer and, therefore, respondent No. 2 would be liable to pay the amount. It was respondent No. 2 who had engaged the applicant/appellant as labourer on the construction work.
16. In the result the appeal is allowed. The order passed by the Commissioner under the Workmen's Compensation Act and the Judge, Labour Court, Latur is set aside. Respondent No. 2 shall pay in all Rs. 5,000/- as total amount towards compensation, interest and costs to the applicant/appellant within a period of two months from today.