The court held that the trial court had properly assessed the loss of earning capacity and that the provisions of the Second Schedule to the Act did not bar the trial court from reaching a just and fair conclusion.

JUDGMENT :

1. The Employees' State Insurance Corporation, Bombay has preferred this appeal against order, dated February 9, 1988 passed by the Employees' State Insurance Court at Bombay in Appeal (E.S.I.) No. 3 of 1985 filed by the workman Parasnath Shivbaran u/s 54-A of the Employees' State Insurance Act, 1948.

2. At the relevant time, the Respondent No. 1 was employed as a helper in Colour Mixing Department in Bombay Dyeing and Manufacturing Company Ltd. On March 11, 1981, the Respondent No. 1 met with an accident during the course of his employment as a result whereof his left hand was injured. Due to the said accident, the bones of his left hand thumb got crushed and damaged. A steel wire had to be inserted in his left hand thumb due to which the thumb became stiff. In the proceedings before the Court below ii was the case of the workman that the workman had lost total grip of the left hand fingers as a result of the injuries suffered and his chances to get the same job or similar job were substantially reduced. The Respondent No. 1 was got admitted to Mahatma Gandhi Memorial Hospital at Parel. The Respondent No. 1 had to undergo treatment for about 8 months. When Respondent No. 1 approached the Respondent No. 2 to resume his duties, job was denied to Respondent No. 1 on the ground that the Respondent No. I could not do any work in view of his left hand having become practically useless.

3. On or about May 11, 1982, the Medical Board of the Corporation assessed the physical permanent disability of Respondent No. 1 workman at 25%. The Medical Appellate Board revised the decision of the Medical Board and fixed permanent disability of Respondent No. 1 workman to 30%. The Respondent No. 1 used to earn about Rs. 16 per day. In view of the decision of the Medical Appellate Tribunal, the daily amount of permanent disablement benefit was increased from Rs. 3.50 per day to Rs. 4.20 per day. It was the case of the Respondent No. 1 throughout that the Respondent No. 1 had suffered 100% permanent disability in terms of loss of his earning capacity.

4. Being aggrieved by the order of Medical Appellate Tribunal, the Respondent No. 1 preferred Appeal (E.S.I.) No. 3 of 1985 before the Employees' State Insurance Court at Bombay as contemplated u/s 54-A of the Employees' State Insurance Act, 1948. The trial Court recorded the evidence of Respondent No. 1. The trial Court was impressed by the evidence of Respondent No. 1. The trial Court accepted the evidence, of Respondent No. 1. During the course of his evidence, the Respondent No. 1 stated that he could not make use of his left hand fingers for any purpose including tying his dhoti, button his shirt etc. The Respondent No. 1 also stated that he was unable to do his normal duty and he has no other source of income. As far as the right hand is concerned the Respondent No. 1 admitted that his right hand was in perfect working order. The Respondent No. 1 also admitted in his cross examination that the other four fingers of his left hand had their normal movements.

5. After referring to the several judgments of several High Courts as well as the judgment of the Supreme Court in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, (1976) 1 SCC 289 , the trial Court held that the Court was required to assess the loss of earning capacity for purpose of finding the amount of permanent disablement benefit to which the employee was entitled to. The trial Court held that loss of physical capacity in terms of medical terminology was not coextensive with loss of earning capacity. In support of this proposition the trial Court relied on the judgment of the High Court of Calcutta in the case of Sarat Chatterjee and Co. v. Mohd. Khalil, 1979 ACJ 106. The learned Counsel for the Corporation had relied on Part 2 of the Second Schedule appended to the Act and particularly item at Serial Nos. 11 and 12 thereof. After referring to the relevant case law and the provisions of the said Schedule as well