JUDGMENT - (1) This is an appeal by a workman under the Workmens Compensation Act. He was working as a carpenter with the respondent. While removing the centering etc. of a chaija it collapsed and fell on him and he was seriously injured. He was in hospital for seven months. The Doctor gave a certificate that the disability was 65%. The appellant claimed compensation under the Workmen Compensation Act, 1923. He claimed a sum of Rs.3,185/- relying on this certificate. The respondent denied that the injury was caused by reason of the employment and that he acted contrary to instructions. He also attributed his own negligence in the doing of the work and pleaded that he had paid in the aggregate a sum of Rs.2850/- to the appellant.

(2) The learned Commissioner held that the accident arose out of and in the course of employment, that the respondent was liable and he had not proved that the amount of Rs.2850/- was paid by him to the appellant. He held that the appellant fell within the wage group of Rs.80-100 and on the basis of 65% permanent partial disablement awarded Rs.2,730/- and Rs.25/- as costs.

(3) Mr. Kamerkar has contended (1) that the learned Commissioner was in error in holding that the disability was 65% and awarding only an amount of Rs.2730/- and (2) that penalty for delaying the payment should have been imposed.

(4) In his application the appellant had claimed Rs.3185/- on the basis that he was earning daily Rs.3.50 and that would work out at 65% permanent partial disability. Mr.Kamerkar has made an application for amendment of the claim by substituting the amount of Rs.4900/- on the basis of total disability for the amount of Rs.3185/-. He contends that the appellant committed a mistake computing the claim relying on the medical certificate and in the interest of justice he should be allowed to amend the claim. His adviser Casseir has filed his affidavit. He says that he had claimed Rs.4000/- but the Registrar asked him to reduce the claim to Rs.3185/- which he did. In this he is supported by the application where the figure of "Rs.4000/-" has been scored out and replaced by the figure "Rs.3185/-". In the correspondence the appellant had claimed Rs.7000/-

(5) Mr. Israni has opposed the application on the ground of delayed the limitations. Generally amendment application should be granted unless it changes the case of action or the application is not bona fide. It ought not to be rejected only on the ground of delay. In the present case new caused of action is not sought to the added. There can be no question of limitation. As the appellant was misled by the medical certificate, I would allow the amendment.

(6) The next question is one of construction of the relevant provisions of the Act. Section 4 provides for payment of compensation in cases of death, permanent total disablement and permanent partial disablement. Section 2(g) and (I) define "partial disablement" and "total disablement". The definitions so far as relevant are :

"(g) partial disablement means ..................... where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at this time : provided that every injury specified in Schedule I shall be deemed to be partial disablement.

"(I) total disablement means such disablement, whether of a temporary of 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 permanent total loss of sight of both eyes or from any combination of injuries specified in Schedule I when the aggregate percentage of the loss of earning capacity, as specified in the Schedule against those injuries amount to one hundred per cent."

Reading the definitions together would show that in the case of scheduled injuries disablement is total or partial according as the total percentage

Click Here to Read the rest of this document