B.N. Sapru, J.
1. This is an appeal under Section 30 of the Workmen's. Compensation Act by Messrs. Bharat Heavy Plates and Vessels Ltd., Mathura Refinery Project, Mathura.
2. Sri. K.S. Rajan, respondent No. 2, was employed as a Beldar in the factory of the appellant through a contractor. On 15th July, 1978, an accident took place, as a result of which he sustained serious injuries. He filed a claim petition claiming compensation under the Workmen's Compensation Act.
The Chief Medical Officer, Mathura, was directed to examine him. The Chief Medical Officer gave his certificate which runs as follows:
Office of the Chief Medical Officer, Mathura
L.No.M.3/76 Date:3-11-78Sri Jagmohan Lal Upadhya, Labour Inspector.
With reference to endorsement of Sri Jagmohan Lal Upadhya, Labour Inspector dated 27th October, 1978, on the certificate of Dr.W. Thams Methodist Hospital, Mathura, in respect of Sri K.S. Rajan aged 28 years, I examined Sri K.S. Rajan, whose signature taken in my presence appears below, on 3rd November, 1978.
Sri K.S. Rajan suffered from old fracture of left wrist and injury of ring finger of left hand. As a consequence of his injury he has developed irreversible fibrosis of left hand palm deformity of Meta Carpophalyngeal joint of ring finger of left hand.
His left hand and four fingers of left hand have become functionless (except little finger) and disabled.
The deformity according to the Workmen's Compensation Act, 1923, part 2, Section 7, is estimated at 50%.
M.I. One mole on forehead in the midline 2 cms. above the mid-eyebrow point.
Sd. K.K. Khanna
Chief Medical Officer,
Sd. K.S. Rajan,
Signature of Sri K.S. Rajan attested.
Sd. K.K. Khanna
Chief Medical Officer
3. Sri K.S. Rajan appeared in witness box and he stated that he had lost the use of his fingers,
4. The Workmen's Compensation Commissioner has found that Sri K.S. Rajan was drawing Rs. 540 monthly salary. He also found that he was getting Rs. 50 per month towards house rent allowance and he was drawing Rs. 200 per month as overtime. All this was stated by Sri Rajan in his deposition. Rajan was not cross-examined. The Compensation Commissioner on the basis of the loss of earning capacity at 50% partial disablement awarded compensation amounting to Rs. 16,800.
5. Aggrieved by the order of the Compensation Commissioner, the employer has filed this appeal.
6. The submission of the learned Counsel for the appellant is that on July 12, 1979 a Commissioner had been appointed to record the statement of the Chief Medical Officer, Mathura, and to submit his report within ten days. The case was listed for hearing on July 23, 1979. It transpires from the order-sheet dated July 23, 1979. that by that date, the report of the Commissioner had not been received and the case was adjourned to July 31, 1979. On July 23, 1979, no one was present before the Workmen's Compensation Commissioner on behalf of the appellant. The report of the Commissioner was filed on July 31, 1979. Reading the order-sheet of July 23, 1979, as a whole it is clear that the time for making the report had been extended though it is not said in so many words. The argument of the learned Counsel that there was violation of natural justice cannot be accepted because the appellant deliberately absented himself on July 23, 1979; otherwise it would have been able to know that the statement of the Chief Medical Officer would be recorded subsequently.
7. The next argument of the learned Counsel for the appellant is that the Workmen's Compensation Commissioner committed an error of law in including the overtime allowance amounting to Rs. 200 per month in the wages of the appellant and calculating the compensation on this basis. 'Wages' have been defined in the Workmen's Compensation Act in Section 2(m) as follows:
'Wages' includes any privilege or benefit which is capable of being estimated in money other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment.
8. The definition of wages is a comprehensive definition and includes a privilege or benefit which is capable of being estimated in money. The amount of overtime can be estimated in money. Sri Rajan stated that he was in regular receipt of overtime allowance amounting to Rs.200 per month. No evidence has been led on behalf of the employer to contradict this statement nor was Rajan cross-examined. In the circumstances of this case, I hold that the amount of overtime allowance drawn by Rajan was within the concept of 'wages' in Section 2(m) of the Workmen's Compensation Act.
9. The next argument of the learned Counsel for the appellant is that the Workmen's Compensation Commissioner was in error in passing his finding solely on the report of the Chief Medical Officer, Mathura, while determining that Rajan had suffered 50% disability. It is true that it is for the Workmen's Compensation Commissioner to determine the quantum of disability. The opinion of the doctor after examining the injured workman is a relevant piece of evidence for a finding being recorded by the Commissioner. During the pendency of this appeal, an application was made on behalf of the appellant that Rajan be examined by another doctor. I directed a fresh medical examination to the Chief Medical Officer, Allahabad. Dr. N.B. Pant, Orthopaedic Surgeon, submitted his report through the Chief Medical Officer, Allahabad, which runs as follows:
ToThe Chief Medical Officer,Allahabad.Sub: Examination of Sri Rajan K.S. for compensation.Sir,
In reference to your letter No. Mod-R/81(l) dated 24th January, 1981, I have examined Sri K.S. Rajan who appeared before me on 30th January, 1981. He has got a mal-united fracture of proximal phalanx of left hand ring finger which has produced deformity and stiffness to all fingers of hand to terminal degree and wasting of hand muscles of 1/5 to normal size. With time he has improved upon to some extent and it is not further possible to get much relief now. As he has got left hand deformed but being at an early age his loss of formation of left hand is estimated up to 25%. X-ray of left hand has revealed that there is mal-united fracture of fibre of phalanx of left hand finger.
M.I, one mole on forehead in the midline 2 cm, above from mid eyebrow point.
Sd. Dr. N.B. Pant,
M.B.B.S., M.Sr. D. Orth.
Sd. Chief Medical Officer,
10. From a bare reading of these reports, it is clear that Sri Rajan sustained a fracture which produced deformity and stiffness in the fingers. Dr. K.K. Khanna, Chief Medical Officer, Mathura, stated that Sri Rajan had developed irreversible fibrosis of left hand palm and deformity of Meta Carpophalyngeal joint of ring finger of left hand. He further stated that the left hand and the four fingers of left hand had become functionless except the little finger. Dr. Pant, who examined Rajan on 30th January, 1981, much after the date of the accident, found that there was some improvement in the condition of Rajan's hand. He confirmed the fracture and found deformity and stiffness in all fingers of the hand.
Partial disablement has been defined in Section 2(g) of the Act. The definition runs as follows:
'Partial disablement' means, where the disablement is of a temporary nature, such disablement, as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and 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 that time; provided that every injury specified in Part II of Schedule shall be deemed to result in permanent partial disablement.
11. Sri Jain argued that the injury of the appellant falls within Schedule I, part II, Item No. C. Item No. C provides that as a result of the loss of four fingers of the hand, the partial disablement shall be treated as 50%. In the part II, entries 1, 2 and 3 speak of amputation while entries 4 to 10 speak of the loss of the hand, thumb, fingers, etc. The note appended to Schedule I, Part II, provides:
Complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member.
12. When the case was decided, the Commissioner had the certificate of the Chief Medical Officer, Mathura, before him, which stated that the left hand and the four fingers of the left hand had become functionless. It was on that basis that the disability had been worked out. The judgment of the Commissioner cannot be upset on the ground that another doctor had, one and a halt years later, found some improvement in the hand and fingers of Rajan. I, therefore, hold that the Workmen's Compensation Commissioner rightly determined the compensation payable to Sri K.S. Rajan.
13. Lastly, learned Counsel for the appellant submitted that in view of the provisions of Section 12(2) of the Workmen's Compensation Act read with rule 39(1) of the rules under the act, the appellant is entitled to be reimbursed by the contractor, namely, respondent No.3, Sri C.V. Moinuddin Koya, as Rajan was working under the said contractor. It is for the Commissioner now to make the appropriate orders of the request of the appellant to be reimbursed.
14. In the result, the appeal fails and is dismissed with costs. The money deposited by the appellant with the Workmen's Compensation Commissioner shall be paid over to Sri K.S. Rajan.