1. The respondent Bhimaiah was in the service of the Karnataka State Road Transport Corporation Bangalore Division. On 24-6-1969 the respondent, while driving the bus bearing Registration No. MYF 6348 from Tumkur to Bangalore, sustained injuries. One of the front wheels of the bus broke off from the vehicle as a result of which there was an accident. In the said accident he sustained injury to his left arm. The medical evidence shows that the injury sustained by Bhimaiah resulted in an impairment of free movement of his left hand, cisabling him from driving vehicles. He made an application under the Workmen's Compensation Act, 1923, hereinafter referred to as the 'Act' claiming compensation. His case was that the injury sustained by him was a permanent 'total disablement' within the meaning of S. 2(1) of the Act. The KSRTC, the appellant herein, contended that the injury suffered by Bhimaiah was not a permanent total disablement. The Commr for Workmen's Compensation, on a consideration of the evidence, held that it was a case of permanent total disablement and held that since Bhimaiah was no longer fit for the job of a driver he was entitled to the compensation payable for permanent and total disablement. Aggrieved by this decision, the appellant has preferred this appeal.
2. The question for consideration is whether the injury caused to the left arm of Bhimaiah, which has disabled him from using his arm freely constituted 'total disablement' as defined in S. 2(1) of the Act. Total disablement is defined in the following terms :
'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 the 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, amount to one hundred per cent or more'.
3. The evidence regarding the use of the left arm of Bhimaiah, as could be gathered from the evidence of the doctor, indicates that Bhimaiah cannot use his left arm freely. This is not one of the injuries mentioned in Schedule I of the Act, which are deemed to result in permanent total disablement. That is not the case here. The Comer approached the question as to the nature of disability resulting form the injury in the present case on the basis that the disablement most be with reference to and vis-a-vis the work Bhimaiah was performing at the time of the accident, viz., that of a driver. That is not what the law contemplates. In General Manager of the GIP Railway, Bombay v. Bhankar, A.I.R. 1950 Nag. 201, the facts were that a Railway servant working on All post lost one eye and two teeth as a result of a collision between two engines and the Medical Officer declared that the servant was unfit for jobs in Class Al and B but fit for Class C2 because of his defective vision and the job in Class C2 was offered by the Railway but was not accepted by the servant who claimed compensation on the basis of total disablement. In the said decision, V. R. Sen J. held as follows :
'But this inability 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. The reasoning of the learned Commissioner has proceeded as if the words were 'for the work which he was performing at the time of the accident' in place of the words which I have underlined for all work which he was capable of performing at the time of the accident'.
Examined in the light of this enunciation, with which we are in respectful agreement, the disablement suffered by Bhimaiah did not amount to permanent total disablement because, he is capable of performing duties and executing works other than driving of motor vehicles. Therefore, the Commr. was not correct in holding that the injury suffered by Bhimaiah amounted to permanent total disablement within the meaning of the 'Act'. What is the extent and the nature of the injury and what compensation Bhimaiah would be entitled to would, how ever, have to be ascertained afresh, for which purpose, the matter will have to go back to the Commr.
4. Mr. Puttuswamy, the learned counsel for the appellant, stated that it was not the intention of the appellant to discharge Bhimaiah from service. The appellant has continued him in service till date. The Commissioner has stated in his order that if Bhimaiah is continued is service and his salary as a driver is protected, the compensation quantified in the case need not be paid to Bhimaiah. That condition stipulated by the Commissioner appears just and we hope that the respondent will be continued in service till he attains the age of superannuation, protecting his salary as a driver. If the respondent is so continued, he will not be entitled to be paid the compensation that may come to be determined by the Commissioner. As long as the respondent's services are continued by the appellant, appellant is entitled to make use of the services of the respondent in whatever manner it deems fit, consistent with his physical condition.
5. In the result, the impugned order is set aside and the matter is remitted to the Commr. for fresh disposal according to law, and in the light of he observations made in the order.
6. There will however, be no order as to costs in this appeal.