Common Judgment: (B. Prakash Rao, J.)

Heard Sri B.G. Ravinder Reddy, learned counsel appearing on behalf of ESI Corporation and Smt. I. Mammu Vani, Sri G.Purushotham Rao and Sri C.Prakash Reddy, learned counsel appearing on behalf of the appellants and Smt. A. Chayadevi, and Smt.Tara Sharma, learned counsel for the respondent-claimants.

Since common question arises out of all these appeals, they have been taken up together for disposal.

It is not necessary to be gone into the facts in detail having regard to the nature of question which is raised on behalf of the appellants herein, therefore, the same are not being repeated in each of these cases except to the extent indicating that all these cases arise out of a claim for compensation under the provisions of the Workmen’s Compensation Act, 1923, for the injuries which they have sustained during the course of their employment and set up their claim. In C.M.A.No.1141 of 1999 as per the medical evidence the extent of disability is shown at 70% whereas the loss of earning capacity is assessed at 90%. In C.M.A.No.779 of 2005 the extent of disability as shown from the medical evidence is at 25% whereas the loss of earning capacity assessed is 50%. In C.M.A.No.810 of 2005 the extent of disability as per the medical evidence is assessed at 25% whereas the loss of earning capacity is shown at 50%. Lastly, in C.M.A.No.1032 of 2005 the extent of disability suffered as per the medical evidence is at 25% whereas the loss of earning capacity is shown at 50%.

There is no dispute or any challenge as regards all other findings as to the negligence or monthly income. The only plea which is urged on behalf of these appellants is to the effect that having regard to the medical evidence available on record showing the lesser extent of disability, the loss of earning capacity again go beyond and necessarily it has to be on the same percentage but not above. Therefore, in all these matters the Court below went wrong in assessing the earning capacity far beyond the extent of disability, which the injured claimants suffered.

Repelling the aforesaid contentions it has been pointed out on behalf of the claimants that both these aspects, especially, the extent of disability each one suffers and the loss of earning capacity, cannot go together and each case has to be decided on the facts and it need not necessarily to be restricted only to the extent of disability and it can certainly go far beyond or more than the percentage of disability.

On considering the aforesaid submissions in detail and on perusal of the material on record, the only point that arises for consideration is as to whether on the facts and circumstances of each case the loss of earning capacity should be restricted only to the extent of disability, which the injured claimants sustained.

At the out set, as already stated above there is no dispute in regard to the chequered events leading to the present claim before the authority constituted under the provisions of the Workmen’s Compensation Act. There is also no serious dispute in regard to the disability, which the individual claimants have suffered in all these cases. Therefore, the only aspect, which has to be considered, is as to whether the extent of disability is a final one to be taken into account for assessing the loss of earning capacity.

Before one proceeds for considering the aforesaid question, it is relevant to take note of the provisions of the Employees State Insurance Act, 1948 (for brevity ‘the ESI Act’).

Section 2 (15-A) of the ESI Act defines the “permanent partial disablement” which reads as follows:

“permanent partial disablement means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:

Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement.