ORDER
S.K.Dubey, J:
1. The appellant Insurance Company has filed this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against the order dated February 22, 1993 in W.C.Case No. 78/92 passed by the Commissioner for Workman’s Compensation cum-Labour Court, Jabalpur (for short ‘the Commissioner’)
2. The facts are not in dispute. Respondent No. 1, the claimant was employed as a Cleaner/Conductor in Truck No. MPQ – 3495 owned by respondent No. 2 and insured by the appellant. The said truck met with an accident on June 22, 1992 wherein respondent No. 1 received multiple injuries as a result of which leg of the claimant was amputated 4″ below the knee. The Commissioner after recording evidence determined the loss of earning capacity at 100 percent as respondent was not able to perform his duties which he was discharging, hence awarded the compensation of Rs. 1,05, 895/-with interest at the rate of 12 percent from the date of accident till the date of deposit.
3. The only contention raised in this appeal is that the nature of the injury suffered is described at serial No. 20 of Part II of the Schedule I of the Act of which the percentage of loss of earning capacity is statutorily provided as 50 percent. Therefore, according to 50 percent loss of earning capacity, the calculation of the compensation in the manner prescribed in Schedule IV of the Act, which is statutorily fixed by the Legislature ought to have been awarded which cannot be more than Rs. 62,000/- in respect of the injury which caused permanent/partial disablement, particularly when no evidence is adduced that the workman has become unfit for doing any work, reliance was placed on decision of the Nagpur High Court in General Manager, G.I.P. Railwayv. Shankar Paltoo 1950 NLJ 415.
4. On the evidence adduced by the parties, the Commissioner has recorded a categorical finding of fact to the effect that workman is not in a position to walk, to move nor he can do his job or duties which he was performing prior to the accident. He has been rendered unfit for the work of Cleaner/Conductor. There is no evidence adduced that after amputation the employer has given the injured workman some lighter work or the workman is doing any other job for his livelihood. In the circumstances, the Commissioner following the decision of the Supreme Court in Pratap Narayan Singh Deo v. Shrinivas Sabata and Anr. (1976-I-LLJ-235) determined the percentage of loss of earning capacity as 100 percent, which is a finding of fact.
5. Section 2(g) of the Act defines ‘partial disablement’ which means that where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was ca-
pable of undertaking at that time; provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement.
6. ‘Total disablement’ is defined in Section 2(1) of the Act, 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 percent or more.
7. Section 4 of the Act deals with the amount of compensation, relevant for the case in hand is Clause (c) which is extracted thus:
“4. Amount of Compensation – (1)
Subject to the provisions of this Act, the amount of compensation shall be as
follows, namely:
(a) xxx
xxx
XXX
(b) xxx
xxx
xxx
(c) Where permanent
partial disablement results from the injury
(i) in the case of an
injury specified in Part 11 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.
xxx
xxx
xxx
7-A. Part I of the Schedule I enumerates the list of injuries deemed to result in permanent total disablement and the percentage of loss of earning capacity with respect to the injury described in the list. Part II of Schedule I of the Act enumerates the list of injuries deemed to result in permanent partial disablement. Serial No. 28 of Part II describes the injury of amputation below knee with stamp exceeding 3-1/2″ but not exceeding 5″ of which percentage of loss of earning capacity is specified as 50 percent”
8. In the case of Pratap Narain Singh Deo v. Shrinivas Sabata (supra), the injured was a carpenter by profession whose left hand above elbow was amputated. Therefore, he was evidently rendered unfit for work of carpenter, as the work of carpenter cannot be done by one hand. That injury was of such a nature as to cause permanent disablement to the workman which incapacitated the workman for all work which he was capable of performing at the time of the accident. Therefore, the Supreme Court
observed that there is no justification for the argument which has been advanced with reference to item 3 of Part II of Schedule I of the Act and affirmed the finding recorded by the Commissioner, who examined the question and recorded his finding accordingly, holding that the workman by loss of the left hand above the elbow was rendered unfit for the work of carpenter, as the work of carpentry cannot be done by one hand only.
9. A Division Bench of Gujarat High Court in Punambhai Khodabhai Parmar v. G. Kenal Construction and Anr. (1985-I-LLJ-98) where in the workman was employed as driver who sustained permanent disability of his right hand finger, right elbow and right thigh, on evidence, observed that the injured workman has been rendered unfit for the job, relying on the decision of the Supreme Court in Pratap Narayan Singh Deo v. Shrinivas Sabata (supra) held that permanent total disablement is to be judged from the point of view of the job which the workman was doing and if the disablement renders him unfit to do that job, the disablement is total and not partial.
10. A Division Bench of Karnataka High Court in National Insurance Company v. R. Vishnu and Anr. 1992 ACJ 590 while considering the case of injured workman who was employed as a driver of a tourist bus which met with an accident, when the driver was driving the bus, in that his both legs were injured and finally his left leg was amputated below the knee. The Court following the decision of the Supreme Court in Pratap Narayan Singh Deo v. Shrinivas Sabata (supra) observed that the question as to whether a particular claimant has suffered partial disablement or total disablement should depend upon the nature of employment and further, if in a given case an alternative employment is given by the same employer that factor can be taken into account. It was observed that in case of specific instances percentage as specified in the Schedule should be accepted and compensation should be awarded without any proof of loss of earning capacity, but a claimant is not debarred from proving that he had suffered higher percentage of loss of earning capacity.
11. A learned judge of Orissa High Court in case of National Insurance Company v. Naren-dra Samal and Anr. 1993 ACJ 1095 wherein the injured was helper and was going in the truck from Ramgarh to Baripada, the truck dashed against a tree at road-side and overturned whereby left leg of the workman was crushed resulting in compound fracture, which was amputated; the Court observed that it was a case of total disablement and not partial as the injured workman was not able to perform his duties as a helper in the truck.
12. In the case in hand it is not disputed that because of the amputation the respondent workman had been incapacitated to perform the duties of Cleaner/Conductor in the truck and has suffered total disablement, in the absence of the evidence that the employer of the respondent has given any alternative employment or the respondent is doing some other job, the finding recorded by the Commissioner is that after the accident the injured workman has become permanently disabled, it being a case of total disablement, in the opinion of this Court, workman is not debarred from claiming compensation more than that specified in the Schedule for the loss of earning capacity, in view of the decision of the Supreme Court in case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. (supra). The same is the view of Karnataka High Court in National Insurance Company v. R. Vishnu and Anr. (Supra) with which we are in respectful agreement.
13. The decision of the learned Single Judge in case of General Manager G.I.P. Railway v. Shankar Paltoo (supra) relied on by the appellant is of no help. In that case a Railway employee suffered the injury of loss of one eye and teeth in the accident arising out of and during the course of employment, it was observed that the loss of teeth is not included in Schedule I and for that no compensation is payable. For total disablement, the disablement must be of such a character that the person concerned is unable to do any work. He must be incapacitated from doing all work and notthe particular work which he was performing at the time of the accident. In our opinion, the observations are counter to the Supreme Court decision which he have followed,
for taking the view that in case of specified instance in the Schedule, without any proof percentage of loss of earning capacity as specified in the Schedule should be accepted and compensation should be awarded, but on that basis a claimant is not debarred from proving that he had suffered higher percentage of loss of earning
capacity than that specified in the Schedule.
14. In the result, the appeal fails and is dismissed with no order as to costs. The appellant is directed to deposit the balance amount within a period of two months with interest as awarded.
