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Rukiya Bai Vs. George D'Cruz (18.07.1960 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberA.S. No. 719 of 1958
Judge
Reported inAIR1961Ker108; [1961(2)FLR410]; (1961)ILLJ75Ker
ActsWorkmen's Compensation Act, 1923 - Sections 2(1) and 4
AppellantRukiya Bai
RespondentGeorge D'Cruz
Appellant Advocate V. Parameswara Menon, Adv.
Respondent Advocate S. Narayanan Potti and; T.S. Kumaran, Adv. for 1st Respondent, D.R. Kamath, Adv. for 2nd Respondent
DispositionAppeal dismissed
Cases ReferredBall v. William Hunt and Sons
Excerpt:
- - 5. we are also not satisfied that the commissioner was wrong in his conclusion that the workman has suffered permanent total disablement. we are not satisfied that the answer by itself is sufficient to dislodge the commissioner's finding and compel a different conclusion......conclusion that the 1st respondent was a workman of the appellant, that he has suffered permanent total disablement as the result of an accident arising out of and in the course of his employment, that he was in receipt of a monthly wage exceeding rs. 70/- but not rs. 80/-, that he was entitled to a compensation of rs. 3,360/- under schedule iv to the workmen's compensation act, 1923. he deducted from the said amount the sum of rs. 240/- already paid to the workman and directed the appellant to deposit the balance of rs. 3,120/- within thirty days from the date of his order. 2. the contention of the appellant is that the compensation awarded is excessive. the contention is based on the assumption that the commissioner went wrong in finding: (a) the amount of the monthly wage; and (b).....
Judgment:

M.S. Menon, J.

1. This is an appeal from the order of the Commissioner for Workmen's Compensation, Trivandrum, in case No. 59 of 1955. The Commissioner came to the conclusion that the 1st respondent was a workman of the appellant, that he has suffered permanent total disablement as the result of an accident arising out of and in the course of his employment, that he was in receipt of a monthly wage exceeding Rs. 70/- but not Rs. 80/-, that he was entitled to a compensation of Rs. 3,360/- under Schedule IV to the Workmen's Compensation Act, 1923. He deducted from the said amount the sum of Rs. 240/- already paid to the workman and directed the appellant to deposit the balance of Rs. 3,120/- within thirty days from the date of his order.

2. The contention of the appellant is that the compensation awarded is excessive. The contention is based on the assumption that the Commissioner went wrong in finding:

(a) the amount of the monthly wage; and

(b) the extent of the disablement.

3. According to the appellant the workman was in receipt of only a monthly wage of Rs. 40/. The Commissioner fixed the monthly wage on the basis of the evidence of the workmen, two co-workers of his, and the President of his Union, Mr. Raghavan, who is also an advocate of this Court. We see no reason to hold that the Commissioner was wrong in accepting their testimony.

4. The appellant was not examined in the ease. Her agent, Mr. A.A. Patel, was the sole witness on her behalf. He admitted that accounts were being kept of the wages disbursed to the workmen. The appellant, however, has not chosen to produce those accounts and the Commissioner has rightly commented on their non-production.

5. We are also not satisfied that the Commissioner was wrong in his conclusion that the workman has suffered permanent total disablement. Exhibit P-1 is the medical certificate issued by the Civil Surgeon of the Government Hospital, Palluruthy, who examined the workman at there-quest of the Commissioner. The certificate readg as follows:

'I examined today Sri George D'Cruz referred to in your letter noted above and found himpermanently disabled due to the spinal injury sustained by him.'

6. The Civil Surgeon was examined before the Commissioner as A. W. 2. He said:

'As per the requisition by the Commissioner for W. C., I have examined the applicant. Ext. P-1 is the certificate sent by me to the Commissioner. He was found to be permanently disabled as a result of the spinal injury. He is totally disabled from walking. He can't stand and attend to any work by which he must make use of his lower limbs. He can only creep.'

There was no cross-examination. The Commissioner asked a question;

'Can he attend to any work?'

The answer was:

'He can sit and work provided the raw materials are supplied to the work spot. He can't do anything which requires locomotion.'

7. According to the counsel for the appellant the answer to the question put by the Commissioner indicates that the disablement was not total but only partial. We are not satisfied that the answer by itself is sufficient to dislodge the Commissioner's finding and compel a different conclusion.

8. Section 2(1) of the Workmen's Compensation Act, 1923, defines 'total disablement' as such disablement 'as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement'. There is no evidence to show that the workman was at the time of the accident capable of doing any work other than that of an ordinary labourer engaged in the physical handling of cargo at the Port, or that it is possible for him to obtain any employment whatsoever in his present condition. 'Incapacity for work' is not the same thing as 'incapacity to work'. as stated fay Earl Loreburn, L.C., in Ball v. William Hunt and Sons, Ltd., 1912 AC 496 at p. 500, 'there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him,' (Butterworth's Workmen's Compensation Cases, Vol. V. p. 459).

9. The Commissioner has considered the entire evidence on record and come to the conclusion that the disablement is total and not partial. We see no reason to differ from him on the ground that it is theoretically possible for the workman to manipulate his untrained fingers in the extraordinary circumstance of an employer choosing to supply raw materials as and when required at the place to which he is confined.

10. in the light of what is stated above the appeal has to be dismissed and we decide accordingly. The appellant will pay the costs of the 1st respondent, advocate's fee Rs. 100/-.


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