N N. Mithal, J.
1. This is employer's appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') who has felt aggrieved by the award made by the Workmen's Compensation Commissioner, Etawah granting Rs. 16,128/- by way of compensation for the injuries caused to the respondent. The appellant has made two submissions : Firstly, it is urged that the accident had taken place on 17.8.1971 and the maximum compensation payable according to then prevailing Schedule IV of the Act was Rs. 8,4000/-. This amount was enhanced to Rs. 16,128/- only in 1976 by way of amendment. Secondly, it is urged that the respondent had suffered 50% loss of earning capacity according to medical certificate and was thus entitled to a proportionately lower amount.
2. From the facts detailed in the award it appears that the respondent was employed as a mistri in the dal and flour mill of the appellant on 17,8.1971 when he met with an accident causing injuries to both his wrists resulting in compound fractures and also a simple fracture of the femur bone. He put forward a claim before the concerned authorities for Rs. 8,400/- on the ground that due to the injuries caused to him there had been i00% loss of his earning capacity.
3. The appellant denied that the respondent was employed by him or that he had suffered any injury in any accident caused within his premises resulting in the loss of his earning capacity to any extent. It was also stated that he was properly looked after and a sum of Rs. 1,800/-was spent over his medical treatment and in addition he was paid Rs. 1,600/- in cash as compensation. He denied his liability for any compensation. His further defence was that the respondent was given to drinks and he was himself responsible for the injuries sustained by him as he was under the influence of liquor when the accident occurred, The Compensation Commissioner allowed the claim,
4. A faint effort was made to assail the findings that the respondent had sustained the injuries in question during the course of his employment. The appellant's liability to pay the compensation was also disputed. However, 1 find that the very nature of defence and the contents of the agreement entered into between the parties after the accident clearly go to establish that: respondent was in fact employed by the appellant and that he had suffered the injuries in an accident caused during the course of his employment. The findings of the Compensation Commissioner in the regard are confirmed.
5. For the appellant it was secondly contended that the injuries sustained by the respondent only resulted in temporary partial disablement and the very basis for awarding the compensation was wrong. He also assailed the findings that it was a case of total permanent disability so as to entitle the employee to maximum compensation payable under Schedule IV.
6. According to the Act the injuries caused to an employee may result either in partial or total disablement and both may be either temporary or permanent, 'partial disablement' as defined in Section 2(1)(g) of the Act, whether temporary or permanent is referable only to the loss of earning capacity of the employee It would be 'temporary' if it reduces the earning capacity only in respect of the employment that he was engaged in at the time of accident and would be 'permanent' if affects it in the respect of every kind of employment which he was then capable.
7. Similarly 'total disablement' as defined in Section 2(1)(1) is referable not to the earning capacity but to the incapacity of the workman for all work he was capable of and this too may be either temporary or permanent where the injury is of the kind mentioned in Part I of Schedule I or when the aggregate loss of earning capacity in respect of all the injuries suffered in the accident is 100% or more it would be deemed to be the case of total permanent disablement.
8. Mr. B. Dixit contends that the workman had been partially disabled to the extent of 50% of his earning capacity and for this he relies mainly on the medical certificate.
9. In this case we are not concerned with the injuries enumerated in either Part I or II of Schedule I as there has been no loss of limb. According to the opinion of the doctor the compound fracture caused to the wrists of both the hands and simple fracture caused to femur bone of the left leg had resulted in the loss of earning capacity to the extent of 50% only. However, in the agreement dated 24.1.1972 relied upon by the employer himself (vide paper No. 13 Ka on the record) it is stated :
Aur tareekh 17 August San 1971 Isvi se fareek awwal patta masheen men ulajh gaya aur bayan pair wa dono hatho se majboor wa bekar ho gaya.
Translated into English, this would read :
on 17th August, 1971 the first party (Thakur Das employee) got entangled in the running belt of the machine rendering him totally helpless and useless in the use of both his hands and left leg.
In the face of this admission it is not possible to entertain any argument by the employer that there had been only 50% loss of earning capacity. This has rightly been held to be a case of total disablement of a permanent nature which had incapacitated the workmen from doing all work that he was capable of at the time of the accident.
10. From the very definition of the terms 'partial disablement' and total 'disablement' a fundamental difference between the two is apparent, while the former concerns itself with loss of earning capacity consequent upon an accident resulting in injuries to a workman, the latter relates to workman's incapacitation for all work that he was capable of. The former affects the wages while the latter affects his very capability to get the work. In the present case both the wrists, after fracture sustained by the workman have been rendered quite useless. A person who was a mechanic by training cannot any longer be capable of doing any work as a mechanic or otherwise his labour being no longer a saleable commodity. Therefore, it must be held that the workman had suffered total disablement of a permanent nature and compensation has to be computed accordingly.
11. The next contention of the appellant that the compensation ought to be awarded according to the amount payable as per Schedule IV on the date of the accident and not on the date when the award is made, however, appears to be correct. In this case the accident had taken place on 17th August, 197l and according to Schedule IV, as it then stood an employee in the income group ranging from Rs 40/- to Rs. 120/- was entitled to only Rs. 8,400/- in the event of total disablement. (See 1982 Labour and Industrial Cases, 1729). It is, therefore, this amount which ought to have been awarded to the respondent instead of Rs. 16,128/- which was the enhanced amount introduced by a notification which was made effective from 21.12.1977. It appears that the Workmen's Compensation Commissioner has wrongly mentioned this higher amount on the basis of the amended Schedule IV under some misapprehension or mistake. The amount of compensation, therefore, could not be anything more than Rs. 8,400/- and the award needs to be reduced accordingly.
12. For the respondent it is contended that the Compensation Commissioner was wrong in deducting the sum i.e. Rs. 1,800/- said to have been spent over medical treatment and Rs. 1,600/- paid in cash from the compensation. A cross-objection to this effect has also been filed. The appellant took a preliminary objection that no cross-objection was legally maintainable. He has in his support cited a decision of the Andhra Pradesh High Court reported as Parimi Venkanna v. Managing Partner Modern Spun Pipe Co. 1974 Labour and Industrial Cases 1480, where it was held that Workmen's Compensation Act was a self contained Code and since there was no provision for filing a cross-objection none was maintainable. It was also observed that the right of the respondent to prefer cross-objection under Order 41, Rule 22, Civil Procedure Code, arises only in an appeal against a decree. Since the appeal under Section 30 of the Act is directed against an order only and not against any decree the provisions of Order 41, Rule 22 could not be applied. However, the legal position in this High Court is different. Under the Motor Vehicles Act also against an award in a motor accident claim case an appeal is provided under Section 110-D. There is no provision for filing cross-objection in the same way as in Workmen's Compensation Act. A Full Bench of this Court in U.P. State Road Transport Corporation v. Janki Devi 1982 ACJ 429 (Allahabad) however, took the view that in an appeal filed under Section 110-D of Motor Vehicles Act, 1939 a cross-objection as contemplated under Order 4l, Rule 22, Civil Procedure Code was maintainable.
13. After considering a large number of authorities regarding the nature of appeal emanating from different special Acts is was held that if an appeal was provided to the High Court without anything more the same procedure should govern it as applies to an appeal of a similar nature under the ordinary law. Thus in a matter of civil nature the procedure applicable to a civil appeal should apply. It was further observed that although the Claims Tribunal was not a civil court yet the nature of jurisdiction exercised by it was the same that of the civil court and its award is a judicial decision. While hearing appeal under Section 110-D, the High Court has to consider the claim in the same manner as any claim in an appeal from a civil court from an area where there is no Claims Tribunal. The award was held to be akin to a decree of the civil court. Extending this principle and by reading 'Court' for 'Tribunal' and 'decree' for an 'award' it was held that Order 41, Rule 22, Civil Procedure Code applied. The position under Workmen's Compensation Act is also similar. I am respectfully bound by the decision of the Full Bench and, therefore, on a parity of reasoning, I hold that in an appeal filed under Section 30 of the Act also the respondent would be entitled to prefer a cross-objection under Order 41, Rule 22, Civil Procedure Code, The preliminary objection is, therefore, rejected.
14. On merits, several grounds have been raised in the cross-objection. Firstly, it is urged that after holding that the agreement was not binding, the Workmen's Compensation Commissioner went wrong in adjusting the amount paid thereunder to the respondent. However, it is one thing to say that an agreement was not enforceable because it was prejudicial to employees' interest and quite another thing to say that no amount had in fact been paid to the employee towards compensation. All that has been held by the Workmen's Compensation Commissioner is that the agreement did not further the rights of the respondent from claiming due compensation payable to him. This does not, however, invalidate the payment actually made to him the thereunder. The respondent had admittedly received certain amounts from the employer and he cannot be allowed to take a double advantage of the same by declining to adjust such payment. Such a stand would be must inequitable and improper. Having taken advantage of the cash handed out to him by the employer he cannot now turn round to say that such sums should not be adjusted.
15. It is next urged that under Section 4 of the Act only such amount as was paid towards compensation can be adjusted. In the explanation to this section there is a clear provision that any amount spent by the employer on medical treatment of an injured employee will not be liable to be adjusted in the compensation payable under this Act. In view of this clear provision it must be held that the appellant can adjust only Rs. 1,600/- from the compensation amount and the remaining sum of Rs. 1,800/- spent over respondent's treatment cannot be so adjusted.
16. Lastly, it is urged that the respondent ought to have been awarded interest on the compensation amount from the date of accident. The Compensation Commissioner in his discretion has not awarded interest to the workman. In appeal the court will not normally interfere with the exercise of discreation unless for strong reasons No such reasons are present and none has been pointed out to me. Hence, the cross-objection on this point must fail.
17. In the result, from the compensation amount of Rs. 8,400/- payable to the respondent a sum of Rs. 1,600/- only shall be deducted and the respondent would be entitled to receive a sum of Rs. 6,800/- from the appellant and this amount shall now stand substituted for the figure of Rs. 12,728/- in the award under appeal.
18. Thus, in view of the above the appeal succeeds in part. The amount of compensation is modified to Rs. 6,800/- but the parties are left to bear their own costs in this Court. Any amount as might have been realised in excess of the amount now awarded may be realised by the appellant from the respondent and/or may be refunded to him