2008 Supreme(Gau) 728

IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
National Insurance Company Ltd. - Appellants
Vs.
Bimal Nath - Respondent
MFA Nos. 2, 3 and 4 of 2007
Decided on : 24.09.2008

To constitute 'permanent partial disablement', arising out of non-scheduled injury, it must be such disablement of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of undertaking at the time of accident resulting in the disablement.

Headnote:

WORKMEN'S COMPENSATION ACT, 1923 - SECTION 4(1)(C)(II) - PERMANENT PARTIAL DISABLEMENT - ASSESSMENT OF LOSS OF EARNING CAPACITY - REGARD TO PERCENTAGE OF LOSS OF EARNING CAPACITY IN RELATION TO DIFFERENT INJURIES SPECIFIED IN SCHEDULE I - TEMPORARY PARTIAL DISABLEMENT - HALF MONTHLY PAYMENT UNDER SECTION 4(1)(D) - REVIEW UNDER SECTION 6.

Fact of the Case:

Three appeals by the Insurance Company against the orders passed by the Commissioner, WC, Guwahati awarding compensation to the workmen-Respondents under Section 4(1)(c)(ii) of the Act, for the personal injuries caused to them by an accident arising out of and in course of their employment.

Finding of the Court:

1. The injuries suffered by the workmen do not result in permanent partial disablement so as to award compensation under Section 4(1)(c)(ii) of the Act and it amounts to temporary disablement, whether total or partial, within the meaning of Section 2(1)(g) and are entitled to compensation under Section 4(1)(d) of the Act. 2. To constitute the 'permanent partial disablement', arising out of non-scheduled injury, it must be proved by the workman concerned that the disablement resulting from the injuries has incapacitated him in performing any other employment which he was capable of undertaking, apart from the employment in which he was engaged at the time of accident. 3. To assess the amount of compensation payable to a workman and in calculating the loss of earning capacity, within the meaning of the Act, the possibility of the workman discharging a different type of job must be borne in mind. 4. The workmen have suffered 'temporary partial disablement' within the meaning of the Act.

Issues: 1. Whether the injuries sustained by the claimant not being one as specified in Schedule 1 Part-II of the Act and there being no evidence and finding at all to show that the alleged disablement of the claimant reduces his earning capacity in every employment which he was capable of undertaking at the time of accident, the learned Commissioner was justified in granting compensation in accordance with the provisions of Section 4(1)(c) of the Act? 2. Whether the medical practitioner having assessed the loss of earning capacity of the claimant at 30% without due regard to the percentage of loss of earning capacity in relation to the injuries specified in Schedule 1 of the Act, the learned Commissioner was justified in acting upon the said purported assessment arid granting compensation under Section 4(1)(c) of the Act?

Ratio Decidendi: 1. The definition of 'partial disablement' in Section 2(1)(g) of the Act makes it clear that to constitute the 'temporary partial disablement', it must be of temporary nature and reduces the earning capacity of a workman in any employment in which he was engaged at the time of accident. 2. The word 'any' occurring in Section 2(1)(g) of the Act, whether it means the employment in which the concerned workman was engaged at the time of accident or any other employment, depends on the context in which the word 'any' is used in that section. 3. To constitute 'permanent partial disablement', arising out of non-scheduled injury, it must be such disablement of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of undertaking at the time of accident resulting in the disablement. 4. The Legislature has used different languages' while defining the 'temporary partial disablement', 'permanent partial disablement' and, 'total disablement'. 5. While assessing the compensation under Section 4(1)(c)(ii) what the learned Commissioner, is required to find out is - whether such disablement is of a permanent nature which reduces the earning capacity of the workman in every employment which he was capable of undertaking, and not merely the particular employment in which he was engaged at the time of accident.

Final Decision: Appeals allowed to the extent indicated. Awards passed by the learned Commissioner stand modified accordingly. No costs.