The Workmen's Compensation Act is concerned with the effect of injury on the earning capacity of the affected workman, and the determination of loss of earning capacity should be based on legal evidence, not solely on medical evidence.

1. Both these appeals have been preferred against the order dated 13.4.1995 passed by the Commissioner Workmen™s Compensation Act, 1923 (Assistant Labour Commissioner Doda, whereby he has allowed the applications of the claimants Manzoor Ahmad and Mohd. Shafi awarding compensation of Rs. 45,000/- (including costs of Rs. 200/-) and Rs. 35,000/- (including costs of Rs. 20/-) determining the wages at Rs. 30/- to Rs.35/ - per day, their age 24 years and 20 years and loss of earning capacity 40% and 50% respectively.

2. The impugned orders have been challenged on the ground that the injury caused is a vis major and the employee cannot be held liable for compensation. The loss of earning capacity determined is imaginary and not based upon any legal evidence. The claimants were not in the employment of the appellant either through contract or directly employed by the respondents nor they have received any injury.

3. I have heard the learned counsel for the parties and perused the record.

4. While dealing with the submission of the learned counsel for the appellants, it is seen from the record that the accident is caused during the employment of the respondent on 25th September, 1988 while working on Pathroo in Compartment No. 63, Hanja Jungle, due to sudden breakage and overturning of Pathroo. The respondent, Manzoor Ahmad suffered serious head injury, injuries on his left arm and right leg and other multiple injuries all over the body. The respondent, Mohd. Shaft received injuries on his right leg and arm and other multiple injuries all over his body. The finding recorded on the basis of evidence show that the accident caused is not an act of a vis-major. This fact is proved by the evidence of Mate Siraj-ud-Din, who has deposed that both the Claimants were working through him in the Compartment and met with an accident on 25.9.1988. There is no rebuttal evidence to this fact led by the appellants. The contention of the appellants is, therefore, rejected.

5. The second contention is that the loss of earning capacity determined by the authority is not based on legal evidence. The doctor has been examined who has opined with regard to the disability in earning capacity, though the evidence of the doctor is not conclusive factor for determining the loss of earning capacity, yet the certificate showing percentage of disability need to be considered but not as a piece of evidence for grading the injured to the extent of percentage of loss of earning capacity. The loss of earning capacity is a question of fact, which need to be proved by evidence. Learned counsel in support of his contention has cited AIR 1957 Calcutta 660 (Kali Dass Ghosal, Appellant Vs. S.K. Mondal, Respondent), wherein it is held,

The Workmen™s Compensation Act, is not concerned with physical injury as such, nor with the mere effect of such injury on the physical system of the workman, but it is concerned only with the effect of such injury or of the diminution of physical powers caused thereby on the earning capacity of the affected workman. To what extent the earning capacity has been affected, it can never be for a medical witness to say. Medical evidence is opinion evidence and it is only with the regard to the physical aspect of the injuries that the opinion of a medical -witness is relevant and admissible as the opinion of an expert. But loss of earning capacity is not a matter for medical opinion and is not a matter to which a medical witness can possibly speak.

xxx xxxx xxx xxx xxxx

The utmost a medical witness can give by way of a percentage is to give the percentage of the loss of the normal physical capacity or power. The loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. It is therefore altogether wrong in taking the evidence of the medical witness not only as relevant but as decisive on the question of the loss of earning capacity.

6. There is no evidence on record

Click Here to Read the rest of this document