The present appeal is filed by the appellant-

claimant challenging the judgment and award dated

22.03.2011

in

WCA-NFC-CR-9/2009

passed

by

the

Commissioner for Workmen’s Compensation, Sub-Division,

Bangalore, for seeking enhancement of the compensation.

2.

Brief facts of the case are that, on

17.08.2008 at about 10.30 a.m., while he was executing

his duty at carting yard situated at Chikkanagamangala,

Anekal Taluk, Bangalore District, accidentally, a cement

slab fell on his right foot and the claimant sustained

injuries.

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3.

Heard the arguments from both sides and

perused the records.

4.

The Tribunal has taken the monthly wage

of the claimant at Rs.3,174/- and held the permanent

physical disability at 33% and accordingly, granted

compensation of Rs.1,15,718/-.

5.

From the medical evidence on record

including the evidence of the doctor, it is proved that the

claimant has suffered the following injuries:

1. Crush Injury over dorsum of right foot.

2. Amputation of 2^nd , 3^rd , 4^th and 5^th toes of right foot.

In the X-ray taken at St.John’s Hospital reveals the

following injuries:

a) 2^nd, 3^rd, 4^th, & 5^th toes amputation with multiple K

writing done on 18-08-2008.

b) Debridement of right foot done on 18-09-2008.

c) Free lattissiums doorsi flap cover done on 18-09-2008

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6.

Therefore, it is proved that the claimant

had suffered amputation of right foot as above stated and

other complications. The claimant was working as a

workman in a building construction carting yard and a

cement slab fell on his right foot and sustained injuries

resulting into amputation of right foot as above stated.

7.

The doctor has stated that the claimant

has suffered 33% of permanent physical disability.

Learned counsel for the Insurance Company submitted

that as per Schedule I of Employees Compensation Act for

loss of toes of foot, maximum 31% of permanent partial

disability

is

to

be

considered

and

the

learned

Commissioner is correct in holding 33% as physical

disability.

8.

On the other hand, learned counsel for the

claimant submitted that the claimant was a workman at

building construction site and amputation of toes of right

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foot certainly affects his earning capacity to the extent of

100%. Therefore, prays to hold that the claimant has

suffered 100% of functional disability.

9.

It is not disputed that the claimant had

suffered amputation of 2^nd, 3^rd, 4^th and 5^th toes of right

foot. Even though, it cannot be stated that it is amounting

to 100% of disability, but as per Schedule I of Employees

Compensation Act, it is permanent partial disability at

30%, but the loss of earning capacity is to be considered

on the basis of functional disability as a result of occurring

physical disability. Therefore, considering the nature of

injuries sustained and disability occurred, it is just and

proper to hold that the claimant has suffered 50% of

functional disability as he suffered 33% of permanent

partial disability. Therefore, it is just and proper to held

that the claimant had suffered 50% of permanent

disability affecting the earning capacity. The claimant was

aged 40 year, therefore, the relevant factor is 194.17.

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10.

Learned Commissioner

has

committed

error in considering the income at Rs.3,174/-, which is on

the lesser side. As per Schedule IV of the of Employees

Compensation Act minimum wage of Rs.4,000/- p.m., is to

be considered in the absence of proof of income.

Therefore, income of Rs.4,000/- p.m., is considered.

Therefore, the compensation under the head loss of

earning capacity due to disability is re-assessed and

quantified as follows:

Rs.4,000/- x 60% x 50% x 194.17 =Rs.2,33,004/-

Accordingly, compensation of Rs.2,33,004/- is

awarded under the head loss of earning capacity due to

disability.

11.

Learned Commissioner

has

committed

error in awarding interest at the rate of interest of 7.5% is

not correct. Therefore, as per Schedule IV (3)(a) of

Employees Compensation Act and also as per the decision

of Hon’