1. This is an appeal by the employers against an order passed by the Commissioner for Workmen's Compensation, Bombay, awarding a sum of Rs. 245 as compensation to the respondent for the injury suffered by him. The learned Commissioner has also directed the appellants to pay a sum of Rs. 50 to the respondent by way of penalty and a sum of Rs. 10 by way of costs.
2. The respondent is in the employment of the appellants in a factory situated at Chandiwali. On May 12, 1962 a finger of the right hand of the respondent was caught between the drum and the frame of a coiling machine. The respondent was taken to the Bhabha Memorial Hospital where he was treated until May 17, 1962. On May 21, 1962 the respondent resumed his work and produced a certificate stating that he was fit to resume his duties. The respondent thereafter called upon the appellants to pay compensation for the injury suffered by him during the course of the employment and on the appellants declining to comply with the demand, he filed an application for compensation under the Workmen's Compensation Act.
3. The appellants admitted that the respondent was employed in their factory, but they contended that the injury was not connected with the nature of his employment, that the respondent was never asked to work on the particular machine while operating which he received the injury and finally that neither a partial nor a permanent disability was occasioned on account of the injury. The learned Commissioner for Workmen's Compensation, Bombay, heard the matter on June 29, 1963, when he issued an interim judgment observing that no evidence was at all produced before him to show that the respondent had received an injury which had caused either a partial or total disablement. In Para. 10 of the interim order the learned Commissioner observes that the respondent had not produced any evidence before him to indicate what was the loss of his earning capacity and that, therefore, it was difficult to allow the application filed by him. In the closing paragraph of the order, however, the learned Commissioner expressed the view that it was not proper that the respondent should suffer on account of the total absence of evidence and that it was necessary in the interests of justice that the respondent should be produced before him 'for further questioning.'
4. On July 15, 1963, the respondent appeared before the learned Commissioner and the judgment shows that the Commissioner took upon himself a task which must be foreign to him, namely, to examine the finger and ascertain the extent of the partial disability caused by the injury. It appears from the several observations made by the learned Commissioner in his judgment that the found that the joint between the terminal phalanx and the middle phalanx was stiff, that the respondent complained of pain while the joints were being bent and that the respondent also complained that the use of the finger was causing pain. From an examination of the finger of the respondent the learned Commissioner has concluded as follows in Para. 1 of his judgment :
'... I found that the further bending and straightening the finger was resisted by the applicant. So I am satisfied that the use of the finger is painful and is of no value.'
5. The learned Commissioner then recorded a finding that the permanent loss in the earning capacity of the respondent was about five per cent and that, therefore, he was entitled to received a compensation of Rs. 245.
6. Sri Jathar, who appears on behalf of the respondent, has raised a preliminary objection to the maintainability of this appeal on the ground that the appeal is not maintainable under the first proviso to S. 30(1) of the Workmen's Compensation Act, 1923, unless it involves a substantial question of law. It is urged by the learned counsel that the sole question which arises in this appeal is whether the nature of the injury received by the respondent was such as would cause a permanent loss in his earning capacity and this being a pure question of fact, the appeal is not maintainable. The preliminary objection would be well-founded if in order to determine the correctness of the finding recorded by the learned Commissioner, it were necessary for this Court to re-appreciate the evidence on the record. This, however, is a palpable case of a total absence of evidence and it is well-settled that if a finding is recorded without any evidence whatsoever, the question is one of law.
7. It is clear from the two orders passed by the learned Commissioner that he had before him no evidence whatsoever on which it could be held that a loss in the earning capacity of the respondent was caused. The medical certificate which was produced by the respondent merely states that the finger was injured but does not state that any loss at all was caused in the earning capacity of the respondent on account of the injury. In fact, when the application of the respondent was heard by the learned Commissioner on June 29, 1963 the matter was adjourned because it was felt that there was no evidence which would justify the award of a compensation to the respondent. At the next hearing the learned Commissioner, with respect, ventured on a treacherous ground, for he examined the finger of the respondent and proceeded to ascertain by looking at the finger as to what was the extent of the loss in the earning capacity of the respondent. It is important to bear in mind that this is not a case, for example, in which there is a total loss of a limb, for then one can at least look at the lost limb and say that there is a total or a substantial loss in the earning capacity. After receiving the injury the respondent resumed his work and produced a certificate which did not indicate that his earning capacity was in any manner affected. The observations made by the learned Commissioner in Para. 1 of his judgment dated July 15, 1963 indicate that he was impressed by the reaction produced on the mind of the respondent when the learned Commissioner made movements of the finger. It is hazardous to hold that the movements of the finger in fact caused pain merely because the respondent complained of pain when the finger was moved. The procedure adopted by the learned Commissioner would entail a preponderating importance being given to the subjective feelings of pain and suffering entertained by the injured workman.
8. In view of the fact that apart from the experiment conducted by the learned Commissioner in Court, there is no evidence to justify his finding, the order passed by him shall have to be set aside. In the result, therefore, the appeal is allowed and the order passed by the learned Commissioner is set aside. I must, however, observe that on a suggestion made by me, counsel for the appellants has very fairly agreed that they will not call upon the respondent to repay the amount which has already been paid to him, except the sum of Rs. 50 which the learned Commissioner has asked the appellants to pay to the respondent by way of penalty. There will be no order as to costs.