JUDGMENT
P.R. Raman, J.
1. This Civil Miscellaneous Appeal arises out of the order in W.C.C. 60/1995 (old No. 6/85) on the file of the Commissioner for Workmen’s Compensation and Deputy Labour Commissioner, Kollam.
2. The appellant is the employer, the opposite party in the Workmen’s Compensation case. The respondent herein sustained injury during and while in the course of employment under the appellant. Though there was a dispute that the respondent was not a workman and the Workmen’s Compensation Commissioner earlier dismissed the petition holding that the respondent is not a workman, there was an appeal before this Court as M.F.A. 177 of 1989 and in that appeal, this Court reversed the said finding and held that the respondent herein is a workman and the matter was remanded for determination of the compensation due and payable to the respondent. Pursuant to the remand order, the Workmen’s Compensation Commissioner awarded an amount of Rs. 34,445/- with interest at 6% per annum
from 6.10.1984 towards compensation. The Workmen’s Compensation Commissioner found that the workman is not capable of performing his avocation prior to the accident owing to the injuries sustained by him and so he was considered to be a permanent total disabled man and held that there is 100% loss of earning capacity. The compensation arrived at was on such basis. It is the said judgment of the Workmen’s Compensation Commissioner that is impugned in this appeal.
3. The admitted facts are that the workman at the relevant time was aged 50 years and he was getting a monthly wages of Rs. 450/-. It cannot be disputed that he was a workman and the further fact that he has sustained injury during and while in the course of employment.
4. The respondent, while he was working in a timber depot owned by the appellant sustained injuries. According to the respondent-applicant, the middle and ring fingers of this right hand were amputed and terminal phalanx of the right index finger was cut and removed as a result of the injury sustained by him. He has produced medical records such as discharge certificate from the District Hospital, Kollam, discharge card from the Medical College Hospital, Trivandrum and also the disability certificate issued by Dr. C. Raman Unni, Head of Orthopaedic Department, District Hospital, Kollam for proving the disability. The disability certificate is to the following effect:
“He is an amputee of right middle and ring fingers and terminal phalanx of right index finger
with deformity of right little finger”.
5. The extent of the disability certified is 30%. ‘But a contention was raised that the injured workman is incapable of carrying out the avocation which he was doing just prior to the accident as a result of the injuries and hence he has sustained permanent total disablement. Reliance was placed on an unreported decision of this Court in Director, E.S.I. Corporation v. Sulaiman (M.F.A. 438/1983), arising under the E.S.I. Act in support of this contention. According to the Commissioner for Workmen’s Compensation, in the present case the respondent was doing sawing work in the saw mill of the appellant at the time of the accident and in view of the injuries sustained by him, it was found that the applicant being a saw mill worker will not be able to carry out his avocation without the use of his right hand. It was on such basis that the workman was held to be not capable of performing his avocation as just prior to the accident and justifying the inference that the loss of earning capacity was 100%, compensation was awarded. The fact that this is a scheduled injury is not in dispute and in the judgment itself it is stated that this is a case of scheduled injury. Though the appellant contended that the doctor should be examined to prove the disability that was repelled.
6. The question that arises for consideration in the light of the above facts and circumstances of the case is as to whether in the case of art employee, who sustained
injuries mentioned in the Schedule for which loss of earning capacity is also prescribed in the Statute, can the Commissioner for Workmen’s Compensation come to a conclusion that it is a case of total disablement and assess the loss of earning capacity at 100% ignoring the provisions of the Act?
7. The amount of compensation in the case of death resulting from an injury is as prescribed under Section 4(1)(a) and in the case of permanent total disablement resulting from an injury the amount of compensation payable is as prescribed under Section 4(1)(b) of the said Act. There are two explanations thereunder which are not relevant for the purpose of this case. Section 4(1)(c) prescribes the amount of compensation for injuries resulting in permanent partial disablement. Section 4(1)(c) is extracted hereunder:
“(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 that injury, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury:"
8. Thus, where a permanent partial disablement results from the injury, if it is an injury specified in Part II of Schedule I, the compensation payable is such percentage of compensation which would have been payable in the case of permanent total disablement as is specified therein. In the case of injuries not specified in the Schedule the compensation payable is such percentage of compensation payable to permanent total disablement proportionate to the loss of earning capacity to be determined by the medical practitioner. When we turn to Schedule I Part I, the list of injuries deemed to result in permanent total disablement are mentioned in Serial No. 1 to 6. Percentage of loss of learning capacity is also prescribed in such cases as 100 per cent. Part II Schedule I gives a list of injuries deemed to result in permanent partial disablement. The respective percentage of loss of earning capacity in each such case is also prescribed by the Statute. Only in the case of an injury not specified in the Schedule loss of earning capacity is left to be assessed by a qualified medical practitioner. It was held by a Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharn (1995 (1) KLT 275) that in a case where the injury is not specified in Schedule I, the percentage of earning capacity is a matter to be assessed by a qualified medical practitioner and the Commissioner for Workmen’s Compensation cannot determine the loss of earning capacity without the aid of such assessment being made at the first instance by a qualified medical practitioner.
9. Thus, it can be seen that the Statute itself prescribes loss of earning capacity in the case of scheduled injuries and in the case of non-scheduled injuries alone the matter is left to be assessed by the adjudicating authority with the aid of a qualified medical practitioner.
10. In the present case, the injuries sustained by the workman fall under items 29, 31 and 35 of Part II of Schedule I, aggregate loss of earning capacity of which comes 28%. (The loss of earning capacity for an injury mentioned in item 29 is 9%, for an injury mentioned in item No. 31 is 12% and for an injury mentioned in item No. 35 is 7%) In this case, the disability assessed is only at 30%. Thus, the Commissioner for Workmen’s Compensation has neither followed the percentage of loss of earning capacity as fixed under the Statute nor has he relied on the disability assessed by the qualified medical practitioner at 30% and proceeded to determine the compensation as though it is a case of total disablement on the basis of his finding that the injured workman cannot do the same work as he was doing it prior to the accident in question. The word ‘total disablement’ is defined in Section 2(1) of the Workmen’s Compensation Act as follows:
“(1) .”total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: (provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more)”.
11. From the above definition, it can be seen that a ‘total disablement’ must be such disablement whether temporary or permanent nature, as it would incapacitate a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. However, there is a proviso which carves out an exception to the main part of the section and as per the proviso if it is in injury specified in Part I of Schedule I, it will be deemed to result in total disablement. So also in the case of combination of injuries specified in Part II, if the aggregate percentage of loss of earning capacity ,as specified in the said Part II against those injuries amounts to one hundred percent or more, then also it will be deemed to be a case of total disablement. Thus by fiction of law, the injuries specified in Part I as well as injuries specified in Part II the aggregate of loss of earning capacity of which is 100% or more, are deemed to result in total disablement; But in all other cases other than those covered by the proviso unless the disablement is such so as to incapacitate the workman to perform the works which he was doing at the time of accident it will not be,a case of total disablement. Therefore, a combined reading of Section 2(1) with Section 4 of the Workmen’s Compensation Act makes it abundantly clear that in the case of an injury
specified in the Schedule under the Part II unless the aggregate of the loss of earning capacity is 100% or more the disablement will not be total disablement within the meaning of the Act. Only in the case of an injury not specified in the Schedule, the question arises for determination as to whether it is a case of total disablement as defined in Section 2(1). Therefore, in the present case, when the loss of earning capacity is specified in the Statute itself and the injury sustained are scheduled injuries, there is no scope for further enquiry other than to work out the percentage of the loss of earning capacity as prescribed in the Act. A Division Bench of this Court in Mar Themotheous Birth Centenary Press v. Santhosh Raj (2000 (3) KLT 270) considered a case where compensation awarded equal to 80% of the earning capacity which was greater in extent than that is laid down in the Schedule. The Division Bench observed in para 8 of its judgment as follows:
“It is evident that the distinction between a scheduled injury and a non-scheduled injury has totally been kept aside. Schedule I of the Workmen’s Compensation Act is explicit and has stood the test of time. In respect of the injuries listed, we are of opinion that no further adjudication on the loss of earning capacity of the person, with reference to the particular avocation practiced by him or any other yardstick is warranted. The wordings of the Act, Rules and the Schedule admit no ambiguity. Schedule I lists the injuries deemed to result in permanent disablement and the resulting percentage of earning capacity sustained by such injury. There is no elbow room for substituting the percentage of loss of earning capacity in respect of such of the injuries suffered by a person.”
12. However, it was also observed in paragraph 9 of the judgment that-
“No person can assert or take shelter under a contention that he is prepared to do only one type of work and by the accident if he becomes unable to do the work ever thereafter, he is to be given 100% compensation. The proceedings permit an enquiry as to whether the victim was capable fordoing the yorks that he was able to do al the time of accident. That he was engaged in a specific work at the time of accident does not mean that at the relevant time be was not capable of attending to a hundred different avocations, if he had the inclination to do them. The larger question to be borne in mind by the Commissioner is as to whether a person by the accident became unwillingly a burden to, the community one hundred percent. Of course, the applicant, after the accident will not be able to compete with another, who is 1.00% fit. The loss of three fingers will adversely affect him. But so long as the law prescribes it as 30%, the Commissioner has no further excretion in the matter. His discretion, we would generally observe, could be applied when he fixes, compensation for non-scheduled injuries and then he has also the duty to get assistance from the medical practitioners, who are to examine the nature and extent of the injury and disability. The approach has to be realistic and never arbitrary.”
13. Therefore, in a case of scheduled injury, law does not permit a Further enquiry by the Commissioner to assess the loss of earning capacity and he is bound to apply
the percentage of loss of earning capacity as prescribed in the Statute. However, an observation is made that ‘the mere fact that he is unable to do same work by itself will not bring it to be a case of total disablement unless it is shown that he has rendered himself useless to the society and that he was not able to do several avocations which he was capable of doing prior to the accident in question if he intended to do so*. According to me, that observation cannot be understood in isolation of the context in which it arose for consideration. The question as to whether a workman concerned if he is incapable of doing the work which he was performing at the time of accident could bring him within the scope of the term “total disablement”, the views are not uniform. There are two lines of decisions on this point. In E.S.I. Corporation v, Raju (1994 (2) KLT 139) it is held as follows:
“It is sufficient that the injured workman proves that he is incapable of performing the work which he was capable of performing at the time of the accident in order to claim the benefit for permanent total disablement.”
14. The other view expressed by another Division Bench of this Court in E.S.I. Corporation v. Pushkaran (1993 (2) KLT 187) is as follows:
“The Court will have to enter a specific finding that the injury suffered by the employee caused him total disablement of a permanent nature whereby he is unable to do any work and not only the work which he was doing at the time of the accident.”
15. Both these are cases arising out of an injury not specified in the Schedule. Though in Raju’s case (1994 (2) KLT 139) the view taken in Pushkaran’s case (1993 (2) KLT 187) was referred to but was not followed by saying that the said decision did not refer to an earlier decision of this Court on the point. It is true that in the case reported in M.T.B.C. Press’s case (2000 (3) KLT 270) though no reference is made to the earlier decision on the point that was a case where the injury sustained was one specified in the Schedule and where loss of earning capacity is prescribed in the Statute whereas in the other two decisions injuries sustained were not scheduled injury. Therefore, with regard to a non scheduled injury where the loss of earning capacity is not prescribed in the Statute it has to be assessed by a qualified medical practitioner to find out whether there is a total disablement arising out of any injury not specified in the Schedule, but there is no scope for further enquiry by the Commissioner for Workmen’s Compensation, if it is a case of scheduled injury. To disregard the mandate of the legislature and to determine the loss of earning capacity contrary to what is prescribed in the Statute is not permissible when the legislature has thought it fit to prescribe the loss of earning capacity in respect of scheduled injury. When it is admittedly shown that in the case on hand it falls under Part II of Schedule I for which percentage of loss of earning capacity is also prescribed, there is no warrant for the conclusion reached by the Workmen’s Compensation Commissioner that it is a case
of total disablement and determining the loss of earning capacity at 100% against 28% fixed by the Statute.
16. Even on fact it can be seen that the injury sustained by the concerned workman is only to three fingers of his right hand namely, loss of middle and little fingers and terminal phalanx of the index finger and it cannot be said that such injury sustained by him has resulted in total disablement. The finding that he cannot do the same work as he was performing it prior to the accident in question is also not supported by any other evidence other than the evidence of the concerned workman.
17. In such circumstances and for the foregoing reasons, I find that the judgment of the Workmen’s Compensation Commissioner determining the loss of earning capacity at 100% ignoring the percentage prescribed in the Statute and the disability certificate issued by a qualified medical practitioner as 30%, is not warranted under the provisions of law and hence without jurisdiction. I find that the workman concerned, for the injury sustained by him, is entitled for compensation fixing the loss of earning capacity at 28% – the aggregate percentage of the injury sustained by him. Hence as against the amount awarded, he will be entitled to 28% in all with interest as awarded by the court below. The same shall be worked out and paid.
The appeal is allowed to the above extent. There will be no order as to costs.