S. Maharajan, J.
1. This is an appeal preferred by the Madras Dock Labour Board against the order of the Additional Commissioner for Workmen's Compensation, Madras, awarding compensation of Rs. 4,500 (inclusive of costs) to Manjini, the respondent, under the following circumstances:
2. The respondent was' working as a sub-pool Mazdoor No. 5191 in the Dock Labour Board. While he was oh duty on the deck of a ship on 5th October, 1966, he sustained injuries as a result of an accident. As he and other workmen were loading the ship with bundles of tobacco, it started raining, whereupon all the workmen were taken to the deck of the ship. As Manjini and three others were tying the tent to four rods in the deck, a gale started blowing. The four Workmen were catching hold of the four corners of the tarpaulin tent as it started whirling round. The other three let go the tent with the result that the: tarpaulin tent flung the respondent over a distance of 20 feet on the deck. He fell down on his back and became unconcious. According to him, when he recovered consciousness, he found himself in an ambulance van, which was taking him to the Government Stanley Hospital, where the doctors bandaged his external injuries and sent him away in a rick-shaW to his house. He underwent treatment at the Stanley Hospital from 5th October, 1966 to 22nd October, 1966 and later in the Dock Labour Board Dispensary. According to Dr. Francis John, the Medical Officer of the Dock Labour Board, Manjini was found fit to resume duty frorr 24th November, 1966, but he failed to report for work and, therefore, he was discharged. But Manjini said that he stayed aWay from Work because the movement of his lumber spine had been affected as a result of the injuries sustained during the accident. He produced Exhibit P-1, the certificate dated 9th March, 1967 from Dr. Narayanan, who was the Civil Assistant Surgeon, Kilpauk Medical College Hospital, to the effect that he had suffered a permanent disability to the extent of 41 per cent. He, therefore, claimed compensation of Rs. 4,592 under Section 16 of the Workmen's Compensation Act. Unfortunately, the doctor, who issued the medical certificate, was not examined by the Additional Commissioner. He, however, acted upon the Medical Certificate of the doctor, and after a physical look at Manjini, felt convinced that he could not walk or bend even, and, therefore, awarded compensation as prayed for. In appeal, however, both the parties invited me to summon Dr. Narayanan and the present doctor attached to the Dock Labour Board Dispensary and to re-examine Manjini, the injured person. This request of the parties was granted in the interest of justice and the said persons were examined.
3. The main argument advanced on behalf of the appellant is that no nexus has been established by the respondent between the injuries sustained by him on 5th October, 1966 and the disability which he now admittedly suffers from. Dr. Kesavalu, who is a retired Army Brigadier and who is an M.B.B.S. of the Madras University, is now the Chief Medical Officer of the Dock Labour Board Dispensary. At the request of the Court he examined Manjini on 18th February, 1972 and gave his opinion as follows:
In pursuance of the directions of this Court, 1 examined Manjini today. I find the following: He has got a tenderness over the mid-thoracic region, no tenderness over the lumbar spine. He has limitation of bending the spine, in that he could only come upto the level of the knee joint and cannot touch his toes. As the condition stands today, he is totally unfit to work as a labourer. He cannot earn anything as a labourer in his present condition. Whatever the factor relating to his present disability may be, he has totally lost his earning capacity.
There is, therefore, no gainsaying the fact that as on 18th February, 197a, he has a permanent disability, which prevents him from bending the spine (and doing any work as a labourer. The question arises whether this disability is the result of the injury sustained by him on 5th October, 1966. Unfortunately, like the poor, labourer that he is. neither the Stanley Medical Hospital, to which he was taken immediately after the accident, nor the Dispensary of the Madras Dock Labour Board took the precaution of taking an X-ray photograph to find Out if in addition to the abrasions he susteinied oh the back during the accident, he had sustained any internal injuries. Dr; Narayanan, who clinicallly examined Manjini on 9th March, 1967, says 'as follows:
I found that he had limitation of the movement of the lumber. spine and difficulty in bending down and slight tenderness over the lumber spine. He had clubbing of fingers and toes and corpulmonale and chronic cough with hemopytsis. I assessed his disability to be permanent partial to the extent of 41 per cent. I examined him today. I found the disability to be much worse now.
As Dr. Narayanan had issued the certificate as per Exhibit P-1, I find no difficulty in accepting his evidence and holding that on 9th March, 1967 at any rate Manjini was suffering from limitation of movement of the lumbar spine as Well as difficulty in bending down. It would then follow that the disability of Manjini must be due to an accident which must have occurred not after 9th March, 1967, but before 9th March, 1967. Dr. Francis John, who was the Medical Officer in charge of the Madras Dock Labour Board Dispensary at the time of the accident and who has since gone away to Australia, admitted before the Additional Commissioner that during the accident Manjini sustained multiple abrasions on the back, that he was given treatment from the date of injury upto 23rd November, 1966 and that 'he Was found fit to resume duty from 24th November, 1966'. Be it noted that he did not say that he clinically examined Manjini on 24th November, 1966 and found him Without any disability. Exhibit C-2 series. the case sheets kept by the Madras Dock Labour Board Dispensary in respect of the treatment given to Manjini, give a description of the multiple injuries on the back. Dr. KesaValu, after looking into Exhibit G-2 series, says:
If Manjini had been blown down upon the deck of a ship by a violent gale, he could have sustained not only these external abrasions noted in Exhibit G-2 series but also internal injuries or injury to deeper tissues, including the muscles. If damage had been done to the deeper tissues and the muscles, it could have resulted in the disability which 1 observed in Manjini today.
No doubt, Dr. Kesavalu adds that his opinion is based upon hypothetical suppositions. Admittedly, even an X-ray photograph may not reveal injury to the muscles. If after the external abrasions sustained during the accident had healed, Manjini refrained from rejoining duty, Was it because of any Vicious and wanton disinclination on his part to do any physical work or because his spinal disability had prevented him from doing any manual work? It may be noted that Manjini's average monthly wages at the time of the accident came to Rs. 219.21. It is most unlikely that this poor labourer would have renounced the considerable wages he was earning in consideration of an ill-deserved leisure at' home and of the uncertain prospect of getting some compensation under the Workmen's Compensation Act. The evidence of Manjini is that the disability he is now suffering from is the direct result of the injuries he suffered during the accident. The circumstances under which Manjini admittedly sustained a fall would go to confirm this statement of Manjini. As I have already observed, as he was trying to tie a tarpaulin tent while a gale was blowing, three workmen who were holding the three other corners of the tent, let go the tent with the result the tarpaulin tent flung him over a distance of 20 feet on the deck and he fell down on his back and became unconscious. The violence of the impact must have caused not only the external abrasions, but also internal injures to the deeper tissues including the muscles resulting in a permanent disability of the spine. According to both Dr. Kesavalu and Dr. Narayanan, Manjini is now totally unfit to do any physical work. Having no academic qualifications and no technical skill, Manjini cannot earn anything except by phsyical labour. His earning capacity is ' therefore next to nothing. Dr. Narayanan is unable to explain why he assessed the permanent partial disability at 41 percent. However, the Additional Commissioner for Workmen's Compensation has accepted his evidence and fixed the loss of earning capacity at 41 per cent, as claimed by Manjini himself. As I hold that the nexus has been satisfactorily established between the injuries sustained by Manjini during the accident and his disablement, I confirm the order of the Additional Commissioner for Workmen's Compensation, and dismiss this appeal with costs.