(1) This is an appeal by a workman under the Workmen's Compensation Act. He was working as a carpenter with the respondent. While removing the centering etc. of a chaija it collapsed and fell on him and he was seriously injured. He was in hospital for seven months. The Doctor gave a certificate that the disability was 65%. The appellant claimed compensation under the Workmen' Compensation Act, 1923. He claimed a sum of Rs.3,185/- relying on this certificate. The respondent denied that the injury was caused by reason of the employment and that he acted contrary to instructions. He also attributed his own negligence in the doing of the work and pleaded that he had paid in the aggregate a sum of Rs.2850/- to the appellant.
(2) The learned Commissioner held that the accident arose out of and in the course of employment, that the respondent was liable and he had not proved that the amount of Rs.2850/- was paid by him to the appellant. He held that the appellant fell within the wage group of Rs.80-100 and on the basis of 65% permanent partial disablement awarded Rs.2,730/- and Rs.25/- as costs.
(3) Mr. Kamerkar has contended (1) that the learned Commissioner was in error in holding that the disability was 65% and awarding only an amount of Rs.2730/- and (2) that penalty for delaying the payment should have been imposed.
(4) In his application the appellant had claimed Rs.3185/- on the basis that he was earning daily Rs.3.50 and that would work out at 65% permanent partial disability. Mr.Kamerkar has made an application for amendment of the claim by substituting the amount of Rs.4900/- on the basis of total disability for the amount of Rs.3185/-. He contends that the appellant committed a mistake computing the claim relying on the medical certificate and in the interest of justice he should be allowed to amend the claim. His adviser Classier has filed his affidavit. He says that he had claimed Rs.4000/- but the Registrar asked him to reduce the claim to Rs.3185/- which he did. In this he is supported by the application where the figure of 'Rs.4000/-' has been scored out and replaced by the figure 'Rs.3185/-'. In the correspondence the appellant had claimed Rs.7000/-
(5) Mr. Israni has opposed the application on the ground of delayed the limitations. Generally amendment application should be granted unless it changes the case of action or the application is not bona fide. It ought not to be rejected only on the ground of delay. In the present case new caused of action is not sought to the added. There can be no question of limitation. As the appellant was misled by the medical certificate, I would allow the amendment.
(6) The next question is one of construction of the relevant provisions of the Act. Section 4 provides for payment of compensation in cases of death, permanent total disablement and permanent partial disablement. Section 2(g) and (I) define 'partial disablement' and 'total disablement'. The definitions so far as relevant are :
'(g) 'partial disablement' means ..................... 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 this time : provided that every injury specified in Schedule I shall be deemed to be partial disablement.
'(I) 'total disablement' means such disablement, whether of a temporary of 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 permanent total loss of sight of both eyes or from any combination of injuries specified in Schedule I when the aggregate percentage of the loss of earning capacity, as specified in the Schedule against those injuries amount to one hundred per cent.'
Reading the definitions together would show that in the case of scheduled injuries disablement is total or partial according as the total percentage of all of them together is less than or equal to 100%. Difficulty arises only in the case of non-scheduled injuries. Both total and Partial disablement has reference to earning capacity. In the definition of 'partial disablement' there is direct reference to the earning capacity of the workman while in the case of 'total capacity of the workman while in the case of 'total disablement' it is referred to in the case of scheduled injuries. Moreover the underlying purpose of the Act is to make some provision for a workman who is disabled from earning by work. Merely being physically capable cannot enable by work. Merely being physically capable cannot enable him to earn which he can do only if there are person who would employ him. If there is such incapacity that he cannot get employment for any work he can undertake it would be total permanent disability. The words 'incapacitates a workman for all work' therefore cannot mean any and every work which he may do but means such work as is reasonably capable of being sold in the market. In other words they do not mean 'incapacity to Work'. The words do not have reference to physical incapacity.
(7) Mr.Israni lays emphasis on the word 'all: before the word 'work' and contends that in order that a workman should be totally disabled he must be incapable of doing any work. Looking to the purpose which the Act was intended to serve and the context in which the words are used, I am not prepared to accept the contention.
(8) In Ball v. Willian Hunt and Sons, Ltd. (1912) AC 496, a workman was blind of one eye. But the defect was not visible and he was to all outward appearances a two eyed man. He sustained an employment injury as a result if which the defective eye had to the removed with the consequence that he could not get employment though physically he was as well as before. The House of Lords held that 'incapacity for Work' included inability to get work or in other words 'There is incapacity for work when a man has a physical defect which makes his work unsaleable in any market reasonably accessible to him'.
(9) In Agent, E.I. Rly . v. Maurice Cecil Ryan : AIR1937Cal526 , under this section it was held that loss of earning capacity has to be estimated and not loss of physical capacity. A workman employed by the Railway Company was injured. Surgeon certified his incapacity at 50% and declared him fit for sedentary work i.e. lowest grade in the employment. He was engaged as a clerk but after trial he was declared unfit for that work also. It was held to be total disablement under the Act. The same principle was applied in Rukiyabai v. George D'Cruz, : (1961)ILLJ75Ker .
(10) In General Manager of the G. I. P. Rly. v. Shankar Paltoo AIR 1950 Nag 201, the workman claimed compensation as for total disablement. The learned judge said :
'But this liability did not imply his inability to do other work. Disablement must be of such a character that the person concerned is unable to do any work.'
Mr.Ishrani has naturally very strongly relied on this passage. The observation must be read in the context of the sage. The observations must be read in the context of the facts of the case. The workman though incapable of working as a fireman as before was yet capable of working as a bearer which employment was offered to him but he refused. Under the circumstances the learned judge held that he was entitled to compensation on the basis of partial disablement, only. It is difficult to hold that the learned judge when he made the observations above intended to refer physical incapacity.
(11) In the present case the issue as to the nature of disability was not framed and the case proceeded only on the basis of the medical certificate, a procedure which was strongly disapproved, with respect, rightly in Kali Das V.S.K. Monal : AIR1957Cal660 . The certificate of a medical expert can only say what the injury is, its effect temporary or total on the limb is, however, for the Court to find having regard to the evidence before it whether the workman has suffered partial or total disablement. The Court must take into account the nature of the injury, the nature of the work which the workman was capable of undertaking and its availability to him. In this connection the employer's willingness to employ him in any other alternative employment may have relevance. In my view, the learned Commissioner adopted a wrong procedure in dealing with the case.
(12) Medical certificate appears to be incomplete and does not show which of the particular limbs are affected and to what extent. I understand that the appellant had to be brought to Court supported and on crutches. Prima facie the disablement is much more serious than certified and I think proper inquiry is necessary.
(13) I remit the following issue:
'Whether the appellant has suffered permanent total or partial disability and if partial what is the extent?'
The parties will be allowed to lead such evidence as they desire and the commissioner will certify the finding within two months from the writ reaching him.
(14) The question of penalty has been fully argued before me but I will deal with the question when I finally decide the matter.
(15) Order accordingly