1. This is an appeal by the East Indian Railway Company against an award of the Commissioner, Workmen's Compensation, Bengal, made on 18th February 1936, wherein he held that the applicant workman, who is the respondent in this appeal, was entitled to receive compensation at 100 per cent. from the Agent of the East Indian Railway less a certain portion already paid, namely, Rs. 1,750. The facts of the case are shortly these: The respondent workman was employed by the Railway Company from 1927 as, what is called, a gunner guard. A gunner guard, it has been explained to us, is a man who is put in charge of sorting operations in a shunting yard. On 15th July 1933, whilst the workman was following his employment, he received serious injuries to his spine and as a result he was in hospital for over a year being discharged from hospital on 28th August 1934. A few days previous to his discharge, Mr. Banerjee, an eminent surgeon, gave a certificate which purported to assess the disability of the workman. In it he says:
He complained of a great deal of pain on movement of the spine. He had no symptoms of pressure on the spinal cord, apart from a little weakness of the lower limbs. After treatment he has ankylosed spine in the middle which is somewhat bent forwards and is still painful probably due to Osteo Arthritic changes. His movements are slow and careful and not free and agile. I do not think he will be fit for active duty as a guard on a railway. But he will be fit for sedentary work and will be able to carry on his normal personal acts quite well. I would put him in category of Section 4, Ch. 2, Workmen's Compensation Act, and estimate his disability at 50 per cent.
2. I think the words 'S. 4, Ch. 2, Workmen's Compensation Act,' really mean Section 4-C (ii), Workmen's Compensation Act, which is as follows;
Where permanent partial disablement results from the injury, the amount of compensation shall be in the case of an injury not specified in Sch. 1, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury.
3. That was on 28th August 1934. On 10th September apparently he was examined by the District Medical Officer of the Railway Company who gave the following report:
The above (that is, the workman) is physically unfit and permanently incapacitated for further railway service on account of disability in class A1, A2, A3, B1, B2 and C1, but fit for class C2 after compression fracture of 12th Dorsal Vertebra.
4. On 4th October the applicant was appointed by the railway authorities to a clerkship on Rs. 90 a month which was about three-quarters of the pay which he had received prior to the accident. He attended to his work for some days but complained of pain and inability to do it. The result was that on 24th October the District Medical Officer of the Railway issued a note to the Divisional Superintendent to say:
The above (i.e., the workman) is physically unfit and permanently incapacitated for further railway service on account of disability in class any but fit for class-after compression fracture of the 12th Dorsal Vertebra.
5. That certificate is not too clear in its terms, but a notice was given to the workman by the Railway Company on 30th October which throws some light upon it:
Please note that you have been discharged from the service with effect from 24th October 1934 having been declared by the District Medical Officer to be physically unfit and permanently incapacitated for further service on account of disability.
6. We have been shown a classification of the various employees of the Railway Company. Class C-2 is the lowest class and includes such employments asasst tele traffic supervisor, ayahs, bearers, cash poddars, controllers, cooks, domes, goods accountants, head batchmen, hotel khalasies, instructor training school, junction verifiers, luggage inspectors, markmen, matrons, orderlies, and parcel loaders. On 30th January 1935 the Railway Company deposited in the Commissioner's Court a sum of Rs. 1,345 which represents compensation at 50 per cent. less certain sums which had been paid in advance. Those sums admittedly had been received by the workman and the Railway Company were entitled to have them deducted. On 26th February 1935, Mr. Ryan appeared before the Commissioner and without making any statement took payment of the whole of the Rs. 1,345. Apparently, in April 1935, the workman applied to the Railway Company for work but he received in reply a letter dated 18th April 1935, stating 'you have been declared unfit for further service in any class. You cannot be 're-appointed'. That was signed apparently by the Office Superintendent on 8th November 1935. The workman filed an application for the balance of the 100 per cent, compensation money which at that time, under the law then applicable, amounted for total permanent incapacity to Rs. 3,500. On 31st January 1936 the Commissioner, Work-men's Compensation, dealt with this application and heard the evidence of the applicant and of Mr. Banerjee-the surgeon. He considered his decision and gave it, as stated above, on 18th February 1936 and awarded that the applicant was entitled to receive compensation 100 per cent, from the Railway Company less the portion already paid, namely, Rs. 1,750 In his judgment the Commissioner said:
Since the Railway Company dismissed the workman on the ground that he was totally unfit for their purposes, I am inclined to think that they are estopped from arguing that the man is entitled to a less percentage than 100 now; they told the man in effect that he was of no employment value as a guard or as a clerk or in any other capacity to them. The man's position in life is clear, in that he is not suitable for any other than the sort of employment furnishable by the Railway and the Act uses in Section 2(1) the word capable which must mean 'capable of' at the time of the accident, not 'that he might be capable of with additional training, or if he was fortunate enough to secure some special or perhaps rare post. If that is the real meaning of the dismissal, the Railway Authorities have given their opinion and acted upon it, have caused applicant to act upon it, and it appears to me that they are estopped from resiling from it.
7. It is from that award that the matter comes by way of appeal to us. I think that the Commissioner has arrived at a decision which I am unable to differ from but I do not agree with the process of reasoning by which he arrived at it. I do not think that this is a case of estoppel as the Commissioner suggests. I cannot see that any estoppel, strictly speaking, can arise here. It has been argued before us that the workman's incapacity is 50 per cent, and that all that he is entitled to is 50 per cent, of the compensation that he would be entitled to if he were permanently and totally incapacitated. Mr. Banerjee, the surgeon, on 23rd August 1934, estimated his disability at 50 per cent., he says, under Section 4.C (ii), Workmen's Compensation Act. Now, Mr. Banerjee at that time was in a good position and well qualified to estimate the loss of physical capacity of the workman. The workman had been injured in the spine but he had still the use of many faculties and Mr. Banerjee may well properly have come to the conclusion at that time that his physical incapacity was 50 per cent. What has to be considered in this case is not simply loss of physical capacity. Section 4.C says:
The amount of compensation where permanent partial disablement results from the injury shall be (ii) in the case of an injury not specified in Sch. 1, such percentage of the compensation payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury.
8. What has to be estimated is the loss of earning capacity caused by the injury. That is a different thing from the loss of physical capacity. It is the loss of earning capacity. As a surgeon, Mr. Banerjee might well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident. They are in a position to judge what the loss of earning capacity is. Earning capacity is capacity to earn money. Here the Railway Company employed this man before the accident. His earnings were Rs. 125 a month plus Rs. 37 for allowances. That was the money which he had earned before the accident. After the accident he was classified as fit only for C.2 work the lowest grade of employment on the railway. That was on 10th September. He began work as a clerk on Rs. 90 a month on the 4th of October and continued in that work for some days but gave it up because he stated that he was unable to do it. On the 24th of October the District Medical Officer thought that he was unfit for work in any class and on the 30th of October the Railway Company discharged him as from 24th October on the ground that he was physically unfit and permanently incapacitated for further service on account of disability. That was the estimate that his own employers were in a position to make, and did make, of his loss of earning capacity. It may be, and probably is, true that he has some residuum of earning capacity which, as the learned Commissioner says, in a special post, he would be able to employ; but that must necessarily be small.
9. In my view having regard to the action of the Railway Company, his employers, who after trying him at work and having him medically examined found that he was unfit for any post in any one of the numerous and varied categories of employment which they provide, the learned Commissioner was justified in coming to the conclusion that his loss of earning capacity for all practical purposes was total. I do not put it, as the Commissioner put it, that the Railway Company were estopped from saying that he had earning capacity but that the Railway Company having known his earning capacity before the accident and after the accident found that it had virtually disappeared. Their evidence is the best evidence that could be given of his loss of earning capacity. Consequently, I am of the opinion that the decision arrived at by the learned Commissioner, but not the process of reasoning by which it was arrived at, was correct in law and that this appeal should be dismissed. The result is that this appeal is dismissed with costs: hearing fee three gold mohurs.
B.K. Mukherjea, J.
10. I agree.