(1) This appeal is directed against the order of the Aditional Commissioner,Andhtra Pradesh dated 22-11-1957 passed in W. C. Application No. N. F./21/57 on his file.
(2) The facts out of which this appeal has arisen may be briefly stated. One Baliah, the respondent herein, was working at the relevant time i.e., 16-2-1957, when the accident with which we are concerned in this case occured, as a driver of a concrete mixer run by an oil engine. As a driver of that mixer, he noticed that the tooth wheel of that machine had sprung loose, and accordingly,started to tighten the nut so as to prevent the tooth wheel of the machine getting further loosened, which would have resulted in the drum of the machine coming down. In the process of attending to this, the thumb and index finger of the respendent were caught in the machinery and were cut off. This resulted in the respondent remaining in the hospital for treatment for a period of nearly two months; and he having lost, as a result of the accident, his thumb and therefore-finger and also the effective use of the middle finger, applied for payment of compensation under the first schedule to Workmen's Compensation Act, here in after referred to as the Act, on 16-7-1957, before the Additional Commissioner,Andhra Pradesh, for a sum of Rs. 1960/-, who awarded a compensation of Rs. 1680/-. He awarded the above compensation for the total loss of the thumb and the index finger and the permanent loss of the use of the middle finger, together with Rs. 7/ towards costs.
The present appeal is preferred by the Federation of Labour Co-operatives Ltd., by their Secretary who were the employers of the respondent at the time of the accident. It is not disputed that the respondent was in the employment the appellant from 10-1-1956 to 16-2-1957, the date of the accident. As per the terms agreed upon between the appellant and the respondent, the latter had to be paid Rs. 4/ per day on the days on which he was employed, in addition to the payment for any over-time. It is also not disputed that the respondent lost, by reason of the accident, his thumb and fore-finger. The sum representing the compensation viz., Rs. 1680/ was arrived at by the Additional Commissioner on the basis that the respondent was entitled to 40 percent of loss of his earning capacity. This figure was arrived at with reference to Schedule I of the Act under which the loss of a thumb is reckoned as 25 percent loss of earning capacity and the index finger at 10 per cent and the loss of any other finger at 5 per cent. Besides the 35 per cent that is any how got to be allowed for the loss of thumb and index finger if the entitlement to compensation is established by the respondent, the Additional Commissioner allowed 5 percent for the permanent loss of the use of the middle finger, relying on the medical evidence in the case, to which reference would be made later.
The learned Commissioner fixed the average monthly emoluments of the respondent at Rs. 95/ and for a person whose monthly earnings are Rs. 95/ the maximum compensation payable for permanent total disablement is Rs. 4,200/ and the figure Rs. 1680/ represents the 40 percent of this figure, so that , if the method adopted by the Commissioner is accepted as correct, Rs. 1680/ represents the correct amount of compensation payable to the respondent in respect of the injuries sustained by him during the accident.
(3) Mr. Triambakrao Deshmukh, the learned counsel for the appellant, raised a number of points for consideration. He pointed out at the out set that the Additional Commissioner was not a person competant to award compensation and that he had no jurisdiction to do so and for that reason, apart from the merits of the case, the order should be set aside. In considering this question, reference is to be made to section 20 of the Act which provides for the appointment of Commissioners and the distribution of duties among them, when more than one Commissioner is appointed for any local area. Section 20, so far as it is relevant, is in the following terms:
' (1) The State Government may, by notifiction in the official Gazette, appoint any person to be a Commissioner for Workmen's Compensation for such local area as may be specified in the notification.
(2) Where more than one Commissioner has been appointed for any local area, the State Government may, by general or specific order, regulate the distribution of business between them.
X X X It may be seen from this section that the State Government is given power to appoint any person to be a Commissioner under the Act for the local areas contemplates the appointment of more than one commissioner for any local area. When such appointments are made, the State Government is given to regulate the distribution of business between them. In the present case no material has been placed me or before the Commissioner to show that he had no jurisdiction to try the matter. In fact this question was not raised before him. It is not disputed that the person who has dealt with the matter is one of the Commissioners appointed by the State Government under the Act. Hence, as no material is placed to show that this commissioner was not the person appointment for the local area, namely, Hyderabad, there is no substance in this objection taken by the appellant.
(4) The second point raised by Mr. Deshmukh is that there was a compromise between the employer and the employee and that this compromise should have been registered under section 27 of the Act, and in the absence of any such registration the claim could not have been considered. At the outset, it is clear that there is no comprises at all. The correspondence between the appellant and the respondent shows that at one stage, the respondent offered to accept Rs. 500/ as lump sum compensation together with a condition of his continuous employment on a proper scale. This was not accepted by the general body of the appellant concern, who came forward with a counter proposal that only Rs. 300/ need be paid. This counter proposal was not accepted by the respondent. In these circumstances, it is too much to contend that there was any compromise at all between the parties and that any such compromise would stand in the way of consideration of the legitimate claim preferred by the respondent under the Act. In this connection my attention has been drawn to section 17 of the Act by Mr. Sastry, which prohibits any agreement or contract which has the effect of relinquishment of the claim of a workman for compensation under the Act. Section 17 reads thus:
' Any contract or agreement whether made before or after the commencement of this Act, where by a workman relinquished any right of compensation from the employer for personal injury arising out of or in the course of the employment shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act'.
The plain wording of the section leaves no room for doubt that any arrangment reached between the workman and the employer would have no legal effect. The reason is obvious. The employee, who has been involved in an accident would during the period of his recovery from the accident be out of employment and consequently deprived of his daily wages. The position of the workman and the employer is such that the employer is invariably in a position of authority and controls the situation and could dictate terms the employee being the person looking to the employer for compensation. Thus the employeeis likely to yield to the influence of the employer. It is for this reason that any arrangment which has the effect on the viewed with disfavour by the legislature and consequently any such contract or agreement is regarded as null and void. Thereis therefore no substance in the contention of r. Deshmukh in relation to this point.
(5) The next ground raised is that the compensation would be payable under the Act only to persons involved in the accident, provided the accident is in the course of employment. Section 3(1) of the Act is relevant and may be quoted in this connection.
'If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter. X X X X X.'
Mr. Deshmukh sought to contend, rather feebly, that the accident in this case did not arise out of and in the course of employment of the respondent. The respondent was the driver of the concrete mixer and was in charge of the running of it. It was during the process of running of it. It was during the process of running the machine that he discovered that the tooth wheel of the machine got loose and, if not tightened up immediately would have resulted in the whole drum of the machine coming down, with the resultant damage to the machinery and consequent loss to the employers. It was his obvious duty to pervent such development taking place, which he could do, by tightening up the nut so that no damage could result. In these circumstances, it is obvious that the accident arose out of the employment of the respondent as driver and occured in the course of such employment. I experience no difficulty in coming to this conclusion which, in my opinion, is a case of resipas loquitur.
(6) We do not find even a whisper of the objection which is now sought to be raised by Mr. Deshmukh in the lengthy written statement field by the appellant before the Additional Commissioner. And it is common knowledge that unless an objection is taken before the Commissioner and he has an opportunity of considering the same, parties would not be allowed to raise the same at the later stages of the litigation, particularly, objections which a redependant on findings of fact.
(7) The only other point that is taken by Mr. Deshmukh is that no compensation should have been allowed for the damage to the middle finger. His contention is that according to the note appended to Schedule 1 of the Act, complete and permanent loss of theuse of any limb or member referred to in the schedule shall be deemed to be the equivalent of the loss of that limb or member. The noteis merely an enabling provision. It is not restrictive in language. My attention has been drawn by Mr. Sastry to the provision contained in Sec.4(1) (c) whih is in the following terms:-
'(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) and (b) X X X X X
(c) Where permanent partial disablement results from the injury:-
(i) In the case of an injury specified in Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and
(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 permanently caused by the injury;
Explanation: Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any caseas to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries;'
In order to determine whether the damage to the middle of the finger of the respondent had resulted in permanent partial disability, we have to consider the evidence of the medical officer who is examined as an expert in the case. The material portion of his evidence is as follows:-
'He has lost the thumb and index finger of the right hand and there is a big scar in that area. The middle finger is deviated towards the scar and it is affecting and restricting the movements of the middle finger. In my opinion, the middle finger cannot have its normal functional movement and has to be regarded as loss of that finger.'
In cross examination he deposed that as a Captain in the Army, at one time he had examined many cases and this is what he stated:-
'It cannot generally be said that if the thumb an index finger is lost, the middle finger is useless. It entirely depends on the exact nature of the injury and of necessily each case has to be examined on its own merits.'
Lower down hedeposed:
'The middle finger cannot grasp objects fully. I have tested by an experiment. The scar issue at the base of the middle finger obstructs the movement of the middle finger and it cannot be bent completely ...... The middle finger has not lost its functional movements totally. it can be used partially. The joints of the finger are not injured and are healthy.'
To a question of the court he replied:
'As the applicant is a manual worker the restricted movement of the middle finger would amount to loss of the use of that finger.'
Based on the opinion given by the medical expert, the learned Additional Commisioner held that the restricted movement of the middle finger and its deviation, amount to a total loss of the use of the middle finger, and applying the provisions containing in Schedule I, he fixed the compensation in regard to the middle finger at 5 per cent and added it to the 35 per cent in regard to the loss of the thumb and index finger. In these circumstances I see no Justifiable reasons whatsoever, to disagree with the conclusion reached by the learned Additional Commissioner. I am satisfied that the compensation allowed to the respondent in this case is in accordance with the provisions of the Workmen's Compensation Act and calls for no interferance. This appeal accordingiy fails and is dismissed with costs.
(8) Appeal dismissed.