Back
IN THE HIGH COURT OF ORISSA
A. Pasayat, J.
ORISSA STATE ELECTRICITY BOARD AND OTHERS - APPELLANT
Versus
KEDAR CHARAN LENKA - RESPONDENT
M.A. No. 295 of 1995
Decided On : 16-08-1996
WORKMEN'S COMPENSATION ACT, 1923 - SEC. 4(1)(C)(II) - LOSS OF EARNING CAPACITY - DISTINCTION FROM LOSS OF EARNINGS - CONTINUANCE OF ENGAGEMENT AND NON-REDUCTION IN WAGES NOT DETERMINATIVE FACTORS - AWARD OF COMPENSATION UPHELD.
Fact of the Case:
Claimant, an employee of the Orissa State Electricity Board, sustained injuries in an accident while on duty. The Board accepted that the claimant was an employee and had met with an accident in the course of his employment, but disputed the gravity of injuries and the claimant's age. The Board also contended that there was no loss of earning capacity, and therefore, the claimant was not entitled to any compensation.
Finding of the Court:
The court held that the claimant was entitled to compensation. The court found that the Board's plea that there being no loss of earning the claimant was not entitled to any compensation did not find acceptance by the Commissioner, and award was made.
Issues: Whether the claimant was entitled to compensation despite the continuance of engagement and non-reduction in wages.
Ratio Decidendi: The court held that the concept of loss of earning capacity is distinct from loss of earnings. The court found that the Board's plea that there being no loss in the earning, compensation could not have been awarded was without any merit. The court also held that the Commissioner had erroneously equated the percentage of physical disability with the loss of earning capacity, and fixed the loss of earning capacity at 30%.
Final Decision: The court allowed the appeal to the extent of fixing the loss of earning capacity at 30% and awarding compensation of Rs. 30,578/- to the claimant.
JUDGMENT :
A. Pasayat, J. - In this appeal under Sec. 30 of the Workmen's Compensation Act, 1923 (in short, 'the Act'), Orissa State Electricity Board {in short, the Board') and its functionaries call in question legality of award made by the Commissioner, for Workmen's compensation cum. Assistant Labour Commissioner, Cuttack (in short, 'the Commissioner') awarding Compensation of Rs. 40,770/- to Kedar Charan Lenka (hereinafter referred to as 'the claimant').
2. The award came to be made on the following background: Claimant filed a claim application under the Act claiming compensation of Rs.60.000/-for allegedly having sustained injuries in an accident while on his duty. While he was performing his duty of repairing the electric lines at Kundai under Kotapada section on August 12,1993, he met with accident and sustained injuries arising out of and in course of his employment. It was accepted by the Board and its functionaries that the claimant was an employee and had met with an accident on August 12,1993 in course of his employment. But, the gravity of injuries and age of the claimant were disputed. It was also contended that there was no loss of earning capacity, and therefore, question of entitlement to any compensation did notarise.
Considering the materials on record, the Commissioner held that the claimant was enti- tied to compensation. Plea of the Board that there being no loss of earning the claimant was not entitled to any compensation did not find acceptance by the Commissioner, and award was made.
3. Mr. B.K. Nayak, learned counsel for the Board and its functionaries submitted that since the claimant was re-engaged and was getting his usual salary, there was no loss of earning capacity and therefore, the question of any compensation does not arise. Strong reliance is placed by him on a decision of this Court in Misc. Appeal No. 374 of 1992 disposed of on March 16, 1995 to buttress the stand that when there has been continuance of engagement there cannot be any loss of earning capacity. Additionally it is submitted that the quantum awarded is high.
Mr. R.N. Mohanty, learned counsel appearing for the claimant, on the other hand, submitted that the plea advanced by the Board and its functionaries cannot be maintained. Mere re-engagement cannot deprive the workman benefit of compensation. The Commissioner has assessed the loss of earning capacity at 40% with reference to the evidence of the doctor (PW2), and therefore no interference is warranted.
4. 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-(i) Subject to the prqvison of the Act, this amount of compensation shall be as follows, namely:
(a) and (b) xx xx x
(c) where permanent permanent partial disablement results from the injury.
(i) xx xx
(iii) 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 proportionate to the loss of earning capaicity (as assessed by the qualified medical practitioner) permanently caused by the in- Jury."
5. Board's stand is absence of loss of earning, while claimant lays emphasis on loss of earning capacity. The two concepts have conceptual difference. 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 to appreciate the distinction. 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 Courts. As observed by the House of Lords in the case of Ball v. William Bum and Sons Ltd: 1912 AC 496, the Act regarded a workman only as a wage-earner and was concerned not with physical pain or suffering or disfigurement to which a workman might be subjected 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 Llo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
