Point of Law: Workmen Compensation - Loss of earning capacity - Functional disability caused on account of permanent disabiiity caused to a workman in employment related accident is also a determining factor and Courts cannot entirely go by schedules prescribed in Act for determining loss of earning capacity.

JUDGMENT :

This appeal is at the instance of respondent No.1employer calling in question the legality of the award dated 19.02.2009 in WCA/SR No.122/2005 passed by the learned Labour Officer and Commissioner for Workmen’s Compensation, Sub Division II, Belgaum (for short “the Commissioner”).

2. The brief facts are that claimant Saleem Kutubuddin Mulla was working as emery worker in Bharat Emery Works (respondent No.1), which is a partnership firm with appellants 2 to 4 as partners. On 14.09.2004 while the claimant was working as per the instructions of his employer, his right hand got stuck in the machine and he suffered fractures of fingers and while he was being treated in KLE Hospital, Belgaum, his three fingers had to be amputated.

3. The only substantial question of law contended by the learned counsel appearing for the appellant is that as per Part II of Schedule I of the Employee’s Compensation Act, 1923, (for short “the Act”) for loss of three fingers of one hand, the loss of earning capacity should be taken at 30% and the learned Commissioner having determined the loss of earning capacity at 100%, has violated the norm fixed by the statute itself and, therefore, it is illegal.

4. Learned counsel appearing for the claimant Sri. Harish Maigur, per contra, submits that there is no dispute about the fact that claimant while working as per the instructions of respondent No.1 had suffered amputation of three fingers of his right hand and he is not in a position to gainfully employ himself on account of amputation and, therefore, learned Commissioner was right in fixing his loss of earning capacity at 100%. In this behalf, he placed reliance on a decision reported in 2010(2) Kar.L.J. 650 (Supreme Court) (S. Suresh v. Oriental Insurance Company Limited and another) and submitted that the functional disability caused on account of permanent disability caused to a workman in employment related accident is also a determining factor and Courts cannot entirely go by the schedules prescribed in the Act for determining loss of earning capacity. He submits that on account of amputation of three fingers in right hand of the claimant he is totally disabled from doing any manual labour and therefore, he has lost the prospects of getting any job as a manual labourer. He, therefore, submits that finding of learned Commissioner being supported by evidence, the same is not liable to be interfered with in an appeal filed under Section 30(1) of the Act.

5. I have given my anxious consideration to the submissions made on either side and I have perused the records.

6. There is no dispute about the fact that while claimant was working as an employee under respondent No.1, on account of employment related accident taking place, his three fingers of right hand had to be completely amputated. The said case of the claimant is supported by medical evidence as also the photograph, Ex.P1. Learned Commissioner, after appreciating the evidence and examining the photograph, has come to the conclusion that the workman claimant will not be in a position to rehabilitate himself into any job involving manual labour and, therefore, he is completely deprived of sources of livelihood. Being of the said view, he has fixed the loss of earning capacity at 100%. This finding of the learned Commissioner is a finding of fact based on evidence.

7. In regard to the contention of the learned counsel for the appellant that the Schedule II of the Act having fixed the loss of earning capacity at 30% for loss of three fingers in any one hand learned Commissioner had no jurisdiction to fix the loss of earning capacity at 100% is concerned, the said contention is liable to be noticed only to be rejected in view of the decision of the Hon’ble Supreme Court reported in 2010(2) Kar.L.J. 650 (Supreme Court) (S. Suresh v. Oriental Insurance Company Limited and another) and at Para Nos.7 and 8 it is observed as under:

“7. The correctness of the impugned judgment is questioned mainly on the