G.B. Patnaik, J.
1. This is an appeal under Section 30 of the Workmen's Compensation Act (hereinafter referred to as the 'Act') against the award of the Deputy Labour Commissioner and Commissioner for Workmen's Compensation, Rourkela, dated 10. 6. 1980, who by the impugned order awarded a sum of Rs. 14, 820/- as compensation to the injured workman Mohan Behera.
2. The appellant was a contractor who had entered into an agreement with Steel Authority of India. Rourkela Steel Plant, for supply of labour and the injured was one such labourer who had been engaged as a coolie in the Sintering Plant. On 23. 10. 1978. the injured was required to attend to the drum which was jammed and while he was attending to the said work, his right hand was dragged and he was seriously injured so much so that the hand could be made free only after the belt was cut and he was hospitalised from 23.10.1978 to 14.2.1979. According to the workman, his right hand below the elbow joint became shapeless, useless and disfigured in consequence of which he is not in a position to lift the right hand. He, therefore, claimed compensation amounting to Rs. 15,120/- on the basis that he was receiving Rs. 7/- per day as wages.
3. The contractor (present appellant) filed his objection on the ground that the workman himself was negligent and did not follow the safety instructions and further the claim was grossly exaggerated.
4. The injured alone was examined in support of his case. The learned Commissioner on analysis of the evidence came to hold that the injury sustained by the workman was caused by the accident arising out of and in course of employment and not due to his negligence. He further found that the condition of the right baud of the injured was such that it was equivalent to loss of a hand as envisaged in Schedule-I, Part-II of the Act. Taking the monthly wages of the injured at Rs. 210/-par month and calculating under Schedule-IV of the Act, he assessed the total compensation payable to the injured at Rs. 14, 820)..
5. Mr. Mohanty for the appellant raised two contention in this appeal. Firstly, he submitted that in view of the finding of the Commissioner that the elbow joint has become shapeless, useless and disfigured and the movement of the right hand has been severely restricted the ultimate conclusion that it amounts to loss of a hand as envisaged in Schedule-I, Part-II, item-4 of the Act, was erroneous and, therefore, the amount of compensation awarded in accordance with Schedule-IV should be set aside. He next submitted that under Section 12(2) of the Act, it was the bounden duty of the Commissioner to apportion the quantum of compensation between the principal and the contractor and that not having been done, this Court must direct the Commissioner to do so.
6. So far as the first submission is concerned, Mr. Mohanty's contention is based on an interpretation of Section 4(1)(c)(ii) of the Act. According to Mr. Mohanty, on the findings of the Commissioner and faking into consideration the cature of the injuries, the workman is entitled only under Section 4(1)(c)(ii) and, therefore, it must be ascertained as to what was his earning and what was the proportionate loss of earning on account of the injury in question. The Commissioner has taken the injury to be one covered under Section 4(1)(c)(i) read with Schedule-I, Part-II, item--4 of the Act. In support of his contention, Mr. Mohanty placed reliance on the decision of the Calcutta High Court in the case of Kali Das Ghosal v. S. K. Mondal, A.I.R. 1957 Calcutta, 660 and the decision of the same High Court in the case of Commissioners for Port of Calcutta v. Prayag Ram, A. I. R. 1967 Calcutta, 7,. In the case reported in A.I.R. 1957 Calcutta, 660, the point in issue was what would be the loss of earning capacity of the employee and whether the medical evidence on that score could be taken to be conclusive or not. The Court held that the almost a medical witness could give by way of a percentage is to'give the percentage of the loss of the normal physical capacity or power, but that would not necessarily be co-extensive with the loss of percentage of earning capacity, Therefore, the medical evidence could not be decisive on the question of the low of earning capacity. That Question does not arise for consideration in this case and in my view, therefore, the said decision foal so consequence.
The other decision cited by Mr. Mohanty, namely Prayag Ram's case (AIR 1967 Calcutta, 7), is also to the same effect, i. e. where claim is covered under Section 4(1)(c)(ii) of the Act, what has to be estimated is the loss of earning capacity and the Court held that the low of earning capacity was quite different from loss of physical capacity.
In the present case, I am concerned with the issue as fro whether the injury is such which would come under Section 4(1)(c)(i), as found by the Commissioner, or it would be one covered under Section 4(1)(c)(ii), as contended by Mr. Mohanty. Section 4(1)(c)(i) is quoted here. in below, in extenso :-
'4. Amount of compensation.-(1) Subject to the provisions of this Act, the compensation shall be as follows, namely :-
(a). . . . . . . . . . .(b). . . . . . . . .. . (c) Where permanent partial disablement results from the injury-
(i) In the case of an injury specified in Part-II of 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 the injury, and. Schedule-I, Part-II enumerates the list of injuries which are deemed to result in permanent, partial disablement and item No. 4 thereof provides :-'Loss of hand or of the thumb and four fingers of one hand or amputation from 4' below tip of olecranon.'
The question, therefore, arises for consideration is as to what is the meaning of the term 'loss of a hand'. Mr. Mohanty's contention is that since the evidence is that only movement of the right shoulder joint has been restricted, in the eye of law, it can never amount to 'loss of a hand'. The word 'loss' must not be understood in a liters sense and it cannot be interpreted that it would apply only when there has been amputation of the hand. The word 'loss' in the context, in my view, should mean, the incapacity to have in use of that limb. If a hand remains in tact externally out becomes paralysed on account of the accident to the extent that if cannot he used for the purpose for which it is generally used, then it would amount to a loss of the limb in question. The evidence in this case is that the right hand below the elbow joint became shapeless, useless and disfigured and movement of the right hand became severely restricted. The injured-claimant in his evidence categorically asserted :-
'...My right hand has become useless. The right hand below elbow joint has become shapeless and useless and disfigured giving a bad sight. The shoulder joint which was cut at the time of accident has been stitched and I cannot lift the right hand. Movement of the hand has been restricted. I have become useless...'
In this view of the evidence, in my view, it must be held that it amounts to 'loss of a Hand' as contemplated under item no. 4, Part-II of Schedule-I and the conclusion of the learned Commissioner, therefore, is wholly justified. Taking the monthly wages at Rs.210./-, the calculation of the Commissioner is also in accordance with law. I, therefore, without hesitation reject the submission of Mr. Mohanty, the learned counsel for the appellant.
7. So far as the second contention of Mr. Mohanty is concerned, it is based on an interpretation of Section 12(2) of the Act. Under sub-section (2) of Section 12, where the principal is liable to pay the compensation, he is entitled to be indemnified by the contractor and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. Mr. Mohanty contends that the Commissioner, therefore, should have decided as to the amount of indemnity in the present case. But, in fact, the Commissioner has directed that the principal, namely the Steel Authority of India Limited is entitled to be indemnified to the entire amount of compensation, Mr. Das, the learned counsel far the Steel Authority has submitted that the question of determination of amount of indemnity will arise only in case of a default of agreement, but under the terms of the agreement between the Steel Authority (who is the employer in this case) and the contractor (the present appellant), the contractor is liable to indemnify the Steel Authority in respect of all statutory compensations and. therefore the question of a determination of amount of indemnity by the Commissioner does not arise. He placed before me a copy of the agreement between the appellant and the steel Authority and in my view, the learned counsel for the Steel Authoirty is justified in his submission. In view of the specific provisions in the agreement between the Steel Authority and the appellant, it was not necessary for the Commissioner to determine the amount of indemnity. Accordingly, Mr. Mohanty's contention is devoid of force.
8. In the result, therefore, I do not find merits in this appeal which is accordingly dismissed with costs. Hearing fee is assessed at rupees one hundred.