In case of permanent partial disablement, the comparison between the wages drawn by the workman before and after the accident, from his employer at the time of the accident is not a determinative factor in assessing loss of earning capacity.

JUDGMENT :

A. Pasayat, J. - Award of compensation to Akshaya Kumar Rout, respondent in this appeal (hereinafter referred to as 'the claimant'), by Joint Labour Commissioner-cum-Commissioner for Workmen's Compensation, Orissa, Bhubaneswar (in short, 'the Commissioner') is the subject-matter of challenge by the employer, Indian Railways.

2. Claim for compensation lodged by the claimant under the Workmen's Compensation Act, 1923 (in short 'the Act') was essentially on the following background:

On 4.8.1986 at about 9.20 a.m. while the claimant was working as fitter in Mancheswar Coach Repairing Workshop of the S.E. Railway, he sustained grievous injuries like fracture of hip joint due to accident which arose out of and in the course of his employment. He was 25 years of age and was getting Rs. 1,200/-per month as wages. On account of the said accident he has become permanently disabled to some extent. The Chief Workshop Manager (P), Carriage Repair Workshop, Mancheswar Railway Workshop, was impleaded as opposite party in the claim application.

3. The stand of the opposite party, the appellant in the present appeal, was that the claimant was in service and was getting his full salary. There was no question of any disability or loss of earning capacity.

Considering the materials placed for consideration the Commissioner awarded Rs. 18,804.75 holding that there was loss of earning capacity to the extent of 45 per cent.

4. To further his claim about loss of earning capacity the claimant had submitted the disability certificate issued by Dr. Shribatsa Dash and orthopaedic handicapped certificate issued by Dr. P.K. Rath.

5. The primary ground of assail in this appeal is that the claimant having rejoined his duty after treatment there is no question of any physical disability much less any loss of earning capacity. The learned counsel for the claimant, on the other hand, supported the award.

6. For appreciating the rival submissions, a reference to Section 4(1)(c)(ii) of the Act is necessary. The same reads as follows:

(4) Amount of compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:

(a) and (b) xxx xxx xxx

(c) where permanent partial disable- (i) xxx xxx xxx

ment results from the injury (ii) in the case of an injury

not specified in Schedule I,

such percentage of the compensation

payable in the case of permanent

total disablement as is proportionate

to the loss of earning capacity

(as assessed by the qualified medical

practitioner) permanently caused by

the injury.

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7. Coming to the question of entitlement of a claimant in case there is no loss of earning and there is continuance of engagement, a reference to Section 4(1)(c)(ii) of the Act is necessary. The plea of employers that in case of continuance of engagement and non-reduction in earning compensation is not payable, has not found favour with the courts. As observed by the House of Lords in the case of Ball v.William Bunt and Sons Ltd. 1912 AC 496, the Act regarded a workman only as a wage-earner and was concerned not with any physical pain or suffering or disfigurement to which a workman might be subjected to by accident; but only with the loss of power to earn wages resulting from the injury. Lord Denning in Fairloy v. John Thomson (1973) 2 Lloyd's Sop 40, observed as follows:

It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.

This view has also been taken by the Court of Appeal, Civil Division, England, in Moeliker v. Key wile and Co. Ltd. 1977 ACJ 364 (CA, England). 'Incapacity for work' is not the sam