Loss of earning capacity in cases of partial disability should be calculated based on the permanent partial disability suffered by the workman, and not merely on the fact that the workman continued in the same employment.

1. Applicant is the appellant. This an appeal against the order passed by the learned Additional Commissioner for Workmen's Compensation II, Madras, in W.C. Case No. 75 of 1979 filed by the appellant, granting a compensation of Rs. 5,880/- to the appellant to be paid by the opposite party viz., the respondent herein, for the injury sustained by the appellant during and in the course of his employment under the respondent herein.

2. The appellant herein filed the application claiming compensation alleging that previously he was working in the State Transport Department since 1969, that his services were taken over by the Thanthai Periyar Transport Corporation in the year 1976, that he was employed as a conductor in the Thanthai Periyar Transport Corporation and was working in the Madras Branch, that during 1978 he was drawing a monthly salary of Rs. 430/-, that on 11th June 1978 he was on duty in Bus route No. 174 and he was proceeding as a conductor in the bus bearing Registration No. TMN 7530 from Madras to Tirukoilur, that at about 8.30 a.m., the bus capsized and overturned at Vedanarayanapuram near a distillery factory when the driver tried to negotiate and to avoid dashing with the vehicle coming from the opposite direction, and during the said accident one Jayakumar, who was employed as a Fitter under the opposite party, died on the spot and the appellant got severe injury and that he was first treated at the Government Hospital at Chengalpattu and later at the General Hospital, Madras, and in spite of the best medical treatment he lost hearing beyond recovery due to shock received by him in the accident. The injury sustained by him was due to the accident which arose out of and in the course of employment with the opposite party and the injury suffered by him is listed as item 6' in Part-I of Schedule-I of the Workmen's Compensation Act and the loss of earning capacity is cent per cent. So he claimed Rs. 29,400/- as compensation.

3. The opposite party viz., the respondent herein, in the counter, admitting the employment of the workman as well as the duty of the workman in the bus TMN 7530 on 11th June 1978 and also about the accident, contended that the appellant suffered only a simple injury in the accident and was treated as an out-patient and therefore the appellant has to prove by proper and necessary medical evidence about his loss of hearing and that it was as a result of the accident. The appellant did not make any complaint about such loss of hearing or about short hearing immediately after the accident and the respondent was informed about it only after seven months from the date of accident. There was no reduction in his emoluments and he continued to receive the same amount of wages as he was drawing and he was also discharging his duties in the same post as a Conductor and neither his pay nor his status had been reduced and on 27th January 1979 he requested the respondent to provide him some hearing aid since he was feeling short of hearing and the respondent helped him in arranging for the supply of hearing aid as a welfare amenity at the cost of the respondent. Therefore the respondent prayed for the dismissal of the application.

4. Besides the appellant, one Dr. Ganapaty and another Dr. Ramalingam had been examined as A.Ws. 1 and 2 before the Additional Commissioner for Workmen's Compensation. The appellant in his statement has stated that he had given a report about the accident that took place on 11th June 1978 and has also stated that as a result of the accident he suffered difficulty in hearing and he underwent treatment under Dr. Ramalingam and he had also claimed the medical expenses incurred by him under Ex. A-3 and he also underwent treatment in the General Hospital at Madras and he claimed compensation from the respondent and he did not get any reply. In the cross-examination he has stated that firstly he was treated at Government Hospital, Chengalpattu, as an out-patient and subsequently he