Skip to content


Regional Director, Employees State Insurance Corporation Vs. Milton Francis Calders - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 9 of 1977
Judge
Reported in(1980)82BOMLR310
AppellantRegional Director, Employees State Insurance Corporation
RespondentMilton Francis Calders
Excerpt:
.....making him unfit to work as a fitter--principles for determination and assessment of percentage of loss of earning capacity--whether decisions under the workmen's compensation act, 1923 provide guidance.;the loss of earning capacity has to be proved as a fact.;the medical certificate deals only with physical incapacity and the court should take into account the nature of injury, the nature of work which the workman was capable of undertaking and its availability to him. the court need not follow only the medical opinion. in case of an injury which is not a scheduled injury the reduction in earning capacity has to be proved as a fact. the loss of earning capacity is not co-extensive to loss of physical capacity. no compensation can be granted unless there is loss of earning capacity. in..........1974, and whereby it further declared that due to employment injury there was total loss in the earning capacity of the employee.2. the respondent-employee was in the employment of m/s. dinshaw iron works as a fitter. he was an insured person under the employees* state insurance act. 1948 (hereinafter referred to as the 'insurance act'). it is not disputed that the employee sustained an employment injury on february 25, 1974 while he was working with the machine in the factory of the employer. after the injury the employee was removed to mahatma gandhi memorial hospital (for brevity m.g.m. hospital). the employee was first referred to the medical board constituted under the insurance act, on july 27, 1974. dr. ashtaputre who was a member of the medical board was examined for the.....
Judgment:

Kambli, J.

1. The Employees State Insurance Corporation (hereinafter referred to as 'the Corporation') by this appeal challenges the order of the Employees Insurance Court, Bombay, (hereinafter referred to as 'the Insurance Court') whereby the Insurance Court declared that the respondent-employee had suffered permanent total disablement due to the employment injury sustained by him on February 25, 1974, and whereby it further declared that due to employment injury there was total loss in the earning capacity of the employee.

2. The respondent-employee was in the employment of M/s. Dinshaw Iron Works as a fitter. He was an insured person under the Employees* State Insurance Act. 1948 (hereinafter referred to as the 'Insurance Act'). It is not disputed that the employee sustained an employment injury on February 25, 1974 while he was working with the machine in the factory of the employer. After the injury the employee was removed to Mahatma Gandhi Memorial Hospital (for brevity M.G.M. Hospital). The employee was first referred to the Medical Board constituted under the Insurance Act, on July 27, 1974. Dr. Ashtaputre who was a member of the Medical Board was examined for the Corporation. Dr. Jhunjunwala, Orthopaedic Surgeon was one of the members of the Board. 'The Medical Board's report, exh. 20, reveals that the Board found the extent of loss of earning capacity provisionally assessed at 10 per cent. The employee was found to have a fracture of right heel bone called calcanium. Above the heel bone there is one other bone called talus. When the employee was examined by the Board on August 20, 1974, the joint between calcaniuni and talus was markedly stiff and painful. The employee had pain on walking on right foot. There was swelling at the heel. The disability was provisionally assessed at 10 per cent. The employee was again sent to the Medical Board and was examined on September 11, 1975. The findings of the Medical Board in that examination were as follows:

Healed - Right calcanium with markedly stiff and painful sub fluid joint right foot pain on walking - right foot local swelling.

The Medical Board on this examination had assessed the loss of earning capacity at 7 per cent. finally. The employee being aggrieved preferred an appeal to the Insurance Court, Bombay.

3. It appears that on August 28, 1974 the employee had a paralytic attack on the right side of the body and he was treated in M.G.M. Hospital. The certificate of the Hospital at exhs. 17 and 18 disclose that the employee was admitted for treatment of paralysis on August 28, 1974 and he was discharged on September 11, 1974. His ailment was diagnosed as hyper tension-Heamifligia. He was discharged on September 11, 1974 as he was found to have improved. It will thus be seen that within about six months of the injury sustained by the employed he had a paralytic attack on August 28, 1974. As stated above, the Medical Board on examining the employee on September 11, 1975 assessed the physical disability of the employee at 7 per cent. finally.

4. It appears that the employee had been to one Dr. Pandit on December 11, 1975. Dr. Pandit was examined on behalf of the employee before the Insurance Court. Dr. Pandit is an Orthopaedic Surgeon and at the time when he gave his evidence he was attached to Sion Hospital and Bombay Port Trust Hospital. He is M,S. and F.R.C.S. He is also on the panel of doctors under the Workmen's Compensation Act. After examining the employee he gave him certificate as per exh. '11'. He had taken the X-Ray photo of the injury on December 11, 1975. Dr. Pandit found that the employee had a fracture on the bone. He opined that due to the injury the employee would not be able to walk properly as while walking he limped. Dr. Pandit found the injury at the weight-bearing joint. He also found that the fracture in question had involved the joint of the foot. When cross-examined before the Insurance Court Dr. Pandit stated that it will be difficult for the employee to work as a fitter; that the moment the employee tries to stand, he will have pain in the right leg. So, he will not be able to stand for more than 5/10 minutes; that he will not be able to do any standing work. Dr, Pandit opined that the employee could do only sitting work. Dr. Pandit assessed the permanent partial disablement at 20 per cent. When it was put to Dr. Pandit in the cross-examination whether paralysis suffered by the employee had any bearing on the disability found by him, Dr. Pandit replied in the negative. Dr. Pandit stated in the cross-examination that the attack of paralysis might have been minor, as the employee was required to stay in the hospital for 13/14 days only.

5. The Corporation, as stated above, examined Dr. Ashtaputre, who was the Chairman of the Medical Board from 1973-75. He is M.S. In his deposition he stated that the paralytic attack which the employee had as per the papers of the M.G.M. Hospital will definitely add to his present disability. He stated that the employee had paralytic attack on the right side, that the injury in question was also on the right foot. In his cross-examination Dr. Ashtaputre reiterated that there was considerable extra disability due to the paralysis which the appellant had suffered. However Dr. Ashtaputre stated that the employee will not now be able to stand for a long time on both his legs. That was according to the doctor due to paralytic attack. He was emphatic that the employee's inability to stand for a long time on both his legs was not due to the injury in question. Dr. Ashtaputre was asked in his cross-examination whether he was able to notice the effect of previous paralytic attack on the employee even when he was giving evidence. Dr. Ashtaputre replied in the affirmative and stated that the effects of paralytic attack were noticeable from the movement of right upper extremity and right lower extremely. Dr. Ashtaputre also stated that how the employer is not able to work as a fitter.

6. Mr. Jaykar, the learned Counsel for the Corporation, submitted that the finding of the Insurance Court that the employee had suffered permanent total disablement and that there was total loss in earning capacity is erroneous in law. He also contended that the learned Judge of the Insurance Court erroneously brushed aside the evidence of Dr. Ashtaputre and erroneously relied upon the evidence of Dr. Pandit when he held that the paralytic attack had no bearing on the disability of the employee. According to the learned Counsel, at any rate, the percentage of loss of earning capacity found out by the learned Judge was very excessive. He pointed out to certain items from Part II of the second schedule to the Insurance Act and submitted that in respect of some of the items which would cover the injury sustained by the employee, the percentage of loss of capacity was from 30 to 40 per cent. The learned Judge, therefore, according to the learned Counsel for the Corporation, erred in holding that there was total loss of earning capacity. He also submitted that while finding out the loss of earning capacity the provisions in the Workmen's Compensation Act and the cases decided thereunder should not be relied upon.

7. As against this, Mr. Talavlikar, the learned Counsel for the respondent-employee, submitted that according to the evidence of both the doctors Pandit and Asthaputre, the employee will not now be able to work as a fitter and the finding of the learned Judge of the Insurance Court that there was total loss of earning capacity was justified. At any rate, according to the learned Counsel, this being an appeal under Section 82 of the Insurance Act, this Court should not interfere as no substantial question of law is involved. Mr. Talavlikar submitted that the provisions in the Workmen's Compensation Act and in the Insurance Act on the material point are in par nuttier except in the matters of minor details as regards the working out the compensation etc., and that therefore one can legitimately seek guidance from the decisions rendered under the former Act, while adjudicating upon the points in controversy.

8. It is not in dispute that the employee suffered an employment injury on February 25, 1974. Even though on August 28, 1974 the employee had a paralytic attack, it is clear from the examination by the Medical Board on August 28, 1974 that the employee had suffered a fracture on right calcanium, as stated in the report of the Medical Board exh. 21 dated August 28, 1974. Similarly, when the Medical Board examined the employee on September 11, 1975, though the Board found that the fracture to the calcanium was healed, there were other infirmities like stiffness and pain etc. in the foot. At trade time, the loss of earning capacity was assessed at 7 per cent. finally. Mr. Talavlikar invited my attention to Part III of the Report of the Medical Board where the Medical Board is required to find out whether there is some difficulty in certain system viz. respiratory, alimentary, cardiac and nervous system, and submitted that the Board found nothing abnormal in respect of these systems when the employee was examined on September 11, 1975. It cannot therefore according to the learned Counsel be disputed that the employee had suffered certain physical disablement as a result of the employment injury suffered by him on February 25, 1974 because of which there was a loss in his earning capadity.

9. As pointed out above, both Mr. Ashtaputre and Dr. Pandit have stated that now the employee will not be able to work as a fitter. Dr. Pandit stated that the employee can do only sitting work. The question for consideration, however, would be whether the finding of the learned Judge of the Insurance Court that paralytic attack had no bearing at all on the physical disablement is correct. Sitting in appeal under Section 82 of the Insurance Act, I would have been slow in interfering with that finding. However, I find that the learned Judge has not given sufficient reasons as to why he believed the evidence of Dr. Pandit on that point and rejected the evidence of Dr. Asthaputre. Before I deal with this point further, I may advert to a submission made on behalf of the employee that the paralytic attack may be the result of the employment injury suffered by the employee on February 25, 1974. However, unfortunately, no question on this point has been put to any of the two doctors and there is nothing on record to support the submission that paralytic attack suffered by the employee about six months after the employment injury may be the result of the employment injury. Now coming to the question whether the paralytic attack had any bearing at all on the physical disablement ultimately found by the doctors, as I have stated, no satisfactory reasons are given by the learned Judge to disbelieve the evidence of Dr. Asthaputre and believe that of Dr. Pandit on that point. The learned Judge in para, 13 of his judgment observed that the Medical Board has not referred to the paralytic attack in its report dated September 11, 1975 though the employee had suffered that attack before that date. There is nothing on record to show that the Medical Board was made aware of this paralytic attack when they examined the employee on September 11, 1975. Mr. Talavlikar pointed out that in Part III of the Medical Report of the Medical Board, the Medical Board did not find any abnormality in respect of respiratory, alimentary, cardiac and nervous system on September 11, 1975. It is true that the report of the Medical Board states that nothing abnormal was found in respect of this system. However, no question has been put to Dr. Ashtaputre as to whether they could have found any abnormality in any of these systems if the patient had suffered from a paralytic attack a year earlier. In view of this position, the fact that the Medical Board found nothing abnormal in respect of any of these systems cannot be availed of on behalf of the employee in support of his submission that the paralytic attack has no bearing at all on the physical disablement found by the Medical Board on September 11, 1975. It appears from the evidence of Dr. Asthaputre that in his cross-examination he was asked to see if he could notice the effects of previous paralytic attack on the employee. Dr. Asthaputre stated that such effects were noticeable from the movement of right upper extremity and right lower extremity. As I have stated, there is nothing to show that the Medical Board was made aware of the fact that the employee had suffered a paralytic attack about a year before their cross-examination. It is not unlikely, as tried to be suggested by the learned Counsel appearing for the employee that the Medical Board might have entered their finding in respect of the four systems rather in a casual manner. It is not disputed that the employee had suffered a paralytic attack and was in hospital for about two weeks for the treatment. Merely because the Medical Board did not detect any abnormality in respect of certain systems, it cannot be said that the present disablement of the employee had nothing to do with the paralytic attack. If the learned Judge would have given proper reasons to prefer the evidence of one doctor to the other, I would not have entered into this question. However, in the absence of such reasons and having gone through the evidence of both the doctors, I find that the paralytic attack from which the employee suffered must have some bearing on the present condition of the employee though I am not able to agree with Dr. Asthaputre that there is considerable extra disability due to paralysis which the employee had previously suffered. If there was such a considerable extra disability, I think, the Medical Board might not have failed to notice the effects of this paralytic attack when they examined the employee on September 11, 1975. The evidence of Dr. Pandit shows that the attack was minor. If the attack would have been serious, the patient would have been required to stay in the hospital for a long time. In view of this material, it is not possible to agree with Dr. Ashtaputre or at any rate there is no sufficient material to come to the conclusion that there was considerable extra disability due to paralysis which the employees had suffered. I am, therefore, inclined to hold that the paralytic attack, which the employee suffered some time before his examination on September 11, 1975 must have some hearing on the physical disablement ultimately found by the doctors.

10. In view of this position, the finding recorded by the learned Judge of the Insurance Court that there was total physical disablement on account of the employment injury is unsustainable.

11. The next question is what should be assessed as the loss of earning capacity in the instant case. On this point, the learned Counsel on both the sides have cited before me a number of authorities. All of them are in respect of the provisions under the Workmen's Compensation Act. In Cal. E.S. Corporation v. Habul Chandra [1968] A.T.R. Cal. 278, it has been observed that the loss of earning capacity has to be proved as a fact. Medical evidence of physical disability alone is not sufficient. The loss of physical capacity cannot be equated with loss of earning capacity. Where a workman claims compensation in respect of an injury which is not a scheduled injury, the loss of earning capacity cannot be proved by mere medical evidence. It must be proved by evidence which will establish that the workman was, as a result of the injury unable to earn as much as he did before. This being a question of fact it has to be proved by the evidence like any other question of fact. In Maharashtra Sugar Mills v. Ashni Janvant : AIR1966Bom240 , it is held that the medical certificate deals only with physical incapacity and the Court should take into account the nature of injury, the nature of work, which the workman was capable of undertaking and its availability to him. The Court need not follow only the medical opinion. The learned Counsel for the Corporation submitted that the Medical Board has found the loss of earning capacity at 7 per cent only whereas Dr. Pandit found the permanent partial disability at 20 per cent. The Medical Board has assessed the proportion of loss of earning capacity at 7 per cent. Now, in case of an injury which is not a scheduled injury the reduction in earning capacity has to be proved as a fact.; The loss of earning capacity is not coextensive to loss of physical capacity. No compensation can be granted under the Act for any physical disability unless there is loss of earning capacity. In the case of scheduled injury such a loss is presumed. In case of an injury which is not a scheduled injury, the loss of earning capacity cannot be proved by mere medical evidence, it must be proved by evidence which will establish that the employee was, as a result of the injury, unable to earn as much as he did before. This being a question of fact, it has to be proved by the evidence like any other question of fact. Now, if we look to (the evidence of both the doctors, it is clear that the employee is not now able to work as a fitter. Even Dr. Ashtaputre had admitted in his evidence that now the employee would not be able to work as a fitter though he has stated that there is considerable extra disability due to the paralysis which the employee had previously suffered. I have already observed that it is not possible to accept the evidence of Dr. Asthaputre when he says that there is considerable extra disability due to the paralysis. Even, when the employee was examined on August 20, 1974, before the attack of paralysis, the employee was found to have sustained a fracture of right heel bone. The joint between that bone and another bone called talus was markedly stiff and painful. The employee had pain on walking on right foot. There was swelling at the heel. In view of the result of the examination and the findings then recorded some time before the employee suffered from paralytic attack, it can safely be held that the employee is now unable to work as a fitter because of the fracture. In fact, Dr. Pandit, who had taken X-ray of the injury on October 11, 197.5 found that the employee had a fracture of the heel bone and due to that fracture the employee will not be able to walk properly. The evidence of Dr. Pandit thus shows that he had noticed the fracture even on October 11, 1975 and as a result of that fracture, the doctor opined that the employee will no be able to stand for more than five or ten minutes. The inability of the employee, therefore -to stand and work can be attributed to the fracture sustained by him. The evidence of Dr. Pandit shows that the moment the employee would try to stand he will have pain in the right leg. It will, therefore, have to be held that on account of the employment injury sustained by the employee, it is not now possible for him to work as a fitter.

12. The question then arises what should be held to be the loss of earning capacity in this case. According to the evidence of Dr. Pandit the employee can do only the sitting work. Reliance is placed on behalf of the employee upon {he decision of the Supreme Court in P. Narain Singh Deo v. Sriniwas Sabata : (1976)ILLJ235SC . That was a case where a carpenter was working on the cinema hall of the employer and fell down, resulting in injuries which necessitated amputation of his left arm from the elbow. Personal approach having failed, application was made to the Commissioner for Workmen's Compensation. The Commissioner held that there was permanent total disablement. The finding of the Commissioner was that the injured workman, by loss of the left hand above the elbow has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. The writ petition to the High Court was dismissed The Supreme Court in the appeal preferred before it held that there 'was 'no merit in the appeal and the appeal was dismissed.

13. It is submitted by Mr. Jaykar for the appellant-Corporation that even according to the evidence of Dr. Pandit the employee can do the sitting work and it is further submitted that it is not shown by the employee that he made efforts to obtain work of this kind either from the employer or from anybody else. In the absence of any proof that the employee was unable to get any work, may be sultry work, it is submitted that it cannot be held to be a case of the total loss of earning capacity. Reliance is placed in this behalf upon the decision in Sukhai v. Hukum Chand Jute Mills : AIR1957Cal601 . It has been observed there that although the accident has not really reduced the capacity of the workman to work he can establish a right to compensation, provided he proves by satisfactory evidence that his labour has become unsaleable and he had applied to a reasonable number of likely employers for employment, but had been turned away on account of the results of the accident visible on his person. It is true that in the instant case, the employee and one witness examined by him by name Shankar Salve state that the employee is unable to do any work. However, their evidence does not show that the employee had made efforts (to obtain some work which he could do. As pointed out above, Dr. Pandit stated that he could do the sitting work. The evidence of the employee and the witness Shankar to the effect that the employee is not able to do any work is obviously unacceptable in view of the evidence of Dr. Pandit to the effect that the employee can do the sitting work. In view of this position, it will be difficult to hold that the employee has succeeded in proving that there is total loss in the earning capacity. Even though the employee may not be able to work as a fitter, the evidence of Dr. Pandit shows that he can do some other work though certainly that work may not fetch him any substantial earning.

14. The learned Counsel for the Corporation submitted that if it is held that there is no total loss of earning capacity of the respondent-employee, at the most the percentage of loss of earning capacity cannot be assessed at more than 30 to 40 per cent. For this purpose, he relies upon the entries at item Nos. 19, 27, 28 and 29 in Part II of the second schedule. Item No. 19 relates to loss of all toes of both feet (through the metatarsp-phalangeal joint. It is difficult to say that that item would correspond to the injuries suffered by the employee. The injury suffered by the employee is a fracture of right heel bone (calcanium). Now so far as items Nos. 27, 28 and 29 are concerned they contemplate amputation either below knee or amputation of one foot. However, in the instant case, there is no amputation in fact. Apart from this it has not been suggested to any of the two doctors that if amputation contemplated by items Nos. 27, 28, 29 etc., in Part II of second schedule would have been effected, the injury suffered by the employee would have corresponded more or less to the injuries contemplated by these items. It is, therefore, difficult to proceed to determine the percentage of loss of earning capacity merely by reference to the above items in Part II. If at all, any other item can be considered, that would be item No. 26. Item No. 26 contemplates amputation below knee with stump exceeding 8.99 c.m. but not exceeding 12.70 c.m. and prescribes percentage of loss of earning capacity at 50 per cent.

15. Having regard to all these circumstances of the case, I think it would be proper to assess the percentage of loss of earning capacity at 50 per cent. In the absence of precise and complete evidence enabling the Court to arrive at the percentage of loss of earning capacity we cannot arrive at exact arithmetical decision in the matter of fixing the percentage of loss of earning capacity. One has to arrive at the conclusion having regard to the broad features of the case. It is true that I am determining the percentage of loss of earning capacity at a percentage higher than the percentage of permanent partial disability fixed by Mr, Pandit. The physical disablement and the loss of earning capacity are however as observed above not co-extensive still the finding of the doctor as regards the percentage of the physical disablement is one of the relevant factors to be taken into account while fixing the loss of earning capacity. Having regard to all the circumstances of the case. I have come to the conclusion that the loss of earning capacity should be fixed at 50 per cent.

16. One of the submissions made by the learned Counsel for the Corporation remains to be adverted to. He submitted that while determining the loss of earning capacity under the provisions of the Employees State Insurance Act, 1948 the decisions under the Workmen's Compensation Act should not be relied upon. I do not think that this submission is correct. Both the Acts deal with the entitlement of compensation that is to be awarded to the employees on account of injuries suffered by them by accident arising out of and in the course of the employment. Both the Acts contain similar provisions and deal with the scheduled and non-scheduled injuries. It is true that there are different provisions in the two Acts regarding the agencies or the persons who are saddled with the responsibility to give the actual amount of compensation and there are provisions in the Insurance Act regarding the funds from which the amount to be paid by way of compensation has to be raised. However, I do not think that there is any basic difference as regards the principles for determination of percentage of loss of earning capacity. The decisions therefore under the Workmen's Compensation Act in relation to the provisions under that Act, which are not substantially different from the provisions in the Insurance Act can in my view legitimately be relied upon for the sake of guidance.

17. In view of the above discussion, this appeal must be partly allowed by modifying the order of the learned Judge of the Employees Insurance Court, Bombay indicated above.

18. In the result, the appeal is partly allowed. The order of the learned Judge to the Employees' Insurance Court, Bombay declaring that the employee has suffered permanent total disablement and that due to the employment injury suffered by the respondent-employee there is total loss of earning capacity is set aside and instead it is declared that there is permanent partial disablement due to the employment injury sustained by the respondent-employee and it is further declared that due to the employment injury there is loss in the earning capacity of the respondent-employee to the extent of 50 per cent. only. The Corporation will make payment to the respondent-employee after taking into consideration, these declarations.

19. In the circumstances of the case, there shall be no order as to costs.

20. Civil Application No. 1776 of 1978 filed by the appellant-Corporation for stay of the order of the Insurance Court is dismissed. The respondent-employee is> entitled to receive the compensation on the basis of the order made in this appeal. The learned Counsel for the respondent-employee submits that the appellant-Corporation should be directed to pay the amount of disability benefit from the date of the employment injury. I am not called upon to decide this question in this appeal as that question does not seem to have been raised in the Court 'below. If at all the respondent-employee has got any grievance on that point, it would be open to him to get that question decided in appropriate competent proceeding by a competent authority. I may, however, observe that if under the provisions of the Employees' State Insurance Act, 1948, the employee is entitled to certain benefits, it would not be fair for the statutory Corporation like the appellant to drive the employee to start a separate proceeding to recover the amount due to him legally.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //