MFA 37/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The present appeal witnesses a challenge to the judgment and order dated 05.09.2 006, passed by the learned Commissioner of Workmen’s Compensation, Nagaon (for s hort hereafter referred to as the Commissioner) in Case No. NWC 364/2001, awardi ng an amount of Rs.2,65,644/- as compensation payable to the respondent No. 1/cl aimant by the appellant-insurer. 02. I have heard Mr. D Mazumdar, learned counsel for the appellant a nd Mr. MK Choudhury, learned counsel for the respondent No.1/claimant. 03. The aforementioned case was registered under the Workmen’s Compe nsation Act, 1923 (for short hereafter referred to as the Act) on an application filed by the respondent No.1/claimant, claiming compensation for the injuries s ustained by him in an accident involving vehicle No.AS-02/A-4106 in course of hi s employment. He claimed himself to be an employee of the respondent No. 2 at th e relevant point time and engaged as handyman in the said vehicle. He disclosed that at the time of accident, his vehicle was insured with the appellant. He averred that on 11.06.2001 at about 3.20 a.m., while he was proceeding in the vehicle, a bus, from Doom Dooma to Guwahati, it met with an accident at Baralig aon under Samguri Police Station and as a result, he sustained multiple injuries on his person. He suffered fracture of his left leg and right hand for which he was initially treated by Dr. Sadullah, Ex-Medical and Health Officer, BPCH, Nag aon, but as he did not recover, he was rendered unable to perform any physical l abour and became permanently disabled. While stating that at the time of the acc ident, he was aged 22 years and was drawing a wage of Rs.2000/- per month and Rs . 100/- as daily allowance from the respondent No. 2, he stated that his employe r having refused to pay him the compensation for the injuries sustained, he init iated the proceeding under the Act. The respondent-owner, while admitting that t he claimant was at the relevant time employed as helper/handyman in the vehicle owned by him, denied his liability to pay any compensation, as the vehicle, at t he time of the accident, was insured with the appellant. He, however, admitted t hat the claimant had sustained injuries in the accident. He did not deny the sal ary and daily allowance by the claimant. The appellant-insurer in its written st atement denied its liability. 04. The respondent No. 1/claimant in support of his claim examined h imself, in course of which he, inter alia, stated to have taken treatment from D r. Sadullah and thereafter from Dr. Dilip Baruah. He stated that as per the advi ce of his attending doctors he got the x-ray examination of the injured parts of his body done and affirmed that even after the removal of plaster of his fractu red left leg and right hand, he was neither in a position to walk without help n or do any work. He proved the medical documents Exts. 1 to 13 and also the x-ray plates, Material Ext.1. The respondent No. 1/claimant also examined Dr. Dilip B aruah, retired Joint Director as his witness to prove his disablement from the i njuries suffered by him. The salient features of the testimony of this witness h aving a considerable bearing on the adjudication are enumerated hereinbelow:- (1) A. Physical findings- (a) Dark pigmented patch on right I.F for identification. (b) Chronic post traumatic Osteo Arthritis of the left ankle for which the patie nt cannot bear body weight on left limb properly. (c) Chronic post traumatic Osteo Arthritis of the left Knee for which he cannot flex the joint properly. (d) Chronic post traumatic Osteo Arthritis of the right wrist and right elbow fo r which he cannot work with his right upper limb properly.] (e) Secondary PT of the left hip for which he cannot squat on the ground properl y. (f) Chronic PT lumber disc lesion for which he cannot bend forward. (2) He examined all relevant medical documents issued by Dr. Sadullah w.e.f 11.06.2001 to 12.07.2001 and treated the patient on 13.07.2001 for lwollen left knee, heam Arthrosis of left knee, painful swollen right elbow. (3) He finally examined the patient on 13.09.2002 and issued Ext.2, whereas, he assisted his disablement as under: - Left ankle component - 10% Left knee component - 5% Left hip component - 10% Spinal Component - 15% Right wrist component - 5% Right elbow component - 5% 50% (fifty percent) . (4) For these disablement the claimant’s earning capacity would be reduced b y 50% and that he would not be able to perform his earlier job as handyman. No evidence was adduced by the opposite party in the claim proceedings. 05. On the basis of the pleadings and the evidence, the learned Comm issioner concluded that the respondent-claimant was entitled to an amount of Rs. 2,65,644.00 as compensation under the Act for the injuries sustained by him. As the vehicle involved, at the relevant point of time, was insured with the appel lant, the learned Commissioner held it liable for payment of the amount awarded. In arriving at the above figure, the learned Commissioner assessed the age of t he respondent-claimant to be 22 years as per the medical documents and his salar y to be Rs. 4000/- per month. The following formula was applied:- 60% x 4000 x 221.37 x 50% = 2,65,644 06. Mr. Mazumdar has argued that the impugned award is liable to be interfered with on several counts. As by no means the daily allowance payable to the respondent-claimant could have been included in his monthly salary to worko ut his wages under the Act, the computation resorted to by the learned Commissio ner is patently erroneous. According to the learned counsel, limb wise assessmen t of disabilities is impermissible in law and, therefore, the medical opinion th at the respondent-claimant suffered 50% permanent disablement out of the injurie s sustained by him is grossly wrong and cannot be acted upon. As none of the inj uries cited by PW 2 had resulted in permanent disablement, the learned Commissio ner fell in error in computing the amount of compensation. Mr. Mazumdar emphatic ally urged that the assessment of loss of 50% of the earning capacity of the res pondent-claimant has no basis whatsoever and on that count as well, the impugned award is liable to be set aside. To reinforce his submission, the learned couns el has placed reliance on the decision of the Apex Court in RAJKUMAR VS. AJAY KU MAR & ANR., (2011) 1 SCC 343. 07. Mr. Choudhury, in reply, endorsed the limb wise assessment of di sability made by the Doctor, PW 2. He contended that it is clearly permissible i n view of Explanation-I to section 4(1) (c) of the Act. He also referred to the Schedule-I to the Act and the footnote thereto to buttress this plea. Drawing th e attention of this Court to the summary of the evidence of PW 2 as recorded in the impugned award, the learned Counsel insisted that the state and extent of pe rmanent disablement of the respondent-claimant and the corresponding loss of ear ning capacity having been amply proved thereby, the plea to the contrary is clea rly untenable. He fairly conceded that the daily allowance earned by the respond ent-claimant, however, could not have been included to quantify his wage for the purpose of computing the compensation otherwise payable to him under the Act. 08. The materials on records and the arguments advanced have been ta ken note of by this Court. As required by the Act, the following are the substan tial questions of law to be answered in the instant appeal:- i) Whether the learned Commissioner had erred in including the daily allowance r eceived by the respondent-claimant in ascertaining his wage for the purpose of c ompensation under the Act? ii) Whether the learned Commissioner erred in holding that the respondent-claima nt had suffered permanent disablement of 50% from the injuries sustained by him resulting in loss of his earning capacity to the same extent so as to determine the compensable payable to him? 09. It having been authoritatively decided by a Division Bench of th is Court in ORIENTAL INSURANCE CO. LTD. VS. LAKHIMAI DAS & ANR., 2006 (3) GLT 8 70, that daily allowance by an employee cannot be assimilated in the monthly sal ary earned by him to determine his wage for the purpose of compensation under th e Act, to this extent, the calculations made by the learned Commissioner for qua ntifying the sum to be awarded is, on the face of the records, incorrect. The re spondent-claimant having testified that at the time of the accident, he was earn ing Rs.2000/- per month as salary together with Rs. 100/- as daily allowance, th e learned Commissioner was clearly mistaken in accepting his wage to be Rs. 4000 /- per month. As this, evidently, included his daily allowance, the computation of the amount of compensation to this extent cannot be sustained. 10. Before adverting to the rival contentions bearing on the nature of disablement acquired by the respondent-claimant and the consequential loss of earning capacity, it would be appropriate to refer to certain observations made in RAJKUMAR VS. AJAY KUMAR & ANR. (Supra). The decision involved a claim for co mpensation, arising out of a vehicular accident under the Motor Vehicles Act, 19 88. Their Lordships dwelling on the aspect of permanent disablement observed tha t the learned Tribunal in this regard is required to consider and decide with re ference to the evidence the following: - i) whether the disablement is permanent or temporary; ii) if the disablement is permanent, whether it is permanent total disablement o r permanent partial disablement; iii) if the disablement percentage is expressed with reference to any specific l imb, then the effect of such disablement of the limb on the functioning of the e ntire body, that is, the permanent disability suffered by the person. 10. A. Their Lordships remarked that if the Tribunal concludes that there is pe rmanent disability then it ought to proceed to ascertain its extent on the basis of medical evidence and thereafter determine whether such permanent disability has affected or will affect his earning capacity. In the process, their Lordship required that the Tribunal has to traverse the following steps: - i) what activities the claimant could carry on in spite of the permanent disabil ity; ii) what activities he could not do as a result of the permanent disability; iii) his avocation, profession and nature of work before the accident; iv) age; v) whether the claimant is totally disabled from earning any kind of livelihood, or inspite of the permanent disability he/she could still effectively carry on activities and functions, which he was earlier carrying on. vi) whether she/he was prevented or restricted from discharging his previous act ivities and functions, but could carry on some other or lesser scale of activiti es and functions so that he continues to earn or can continue to earn his liveli hood. It was, inter alia, underlined that the same permanent, disability may result in different percentages of loss of earning capacity in different persons, dependi ng upon the nature of profession, occupation or job, age, education and other fa ctors and that the loss of earning capacity is required to be assessed by the Tr ibunal with reference to the evidence in entirety. 11. The amount of compensation payable under the Act is computable i n terms of the principles laid down in section 4 thereof. In case of permanent t otal disablement resulting from an injury or injuries, this sum is to be arrived at by multiplying a figure i.e. 60% of the monthly wages of the injured workman by the relevant factor descried in Explanation-I to section 4 (1) (b). The rele vant factor corresponds to the completed years of age of the workman on his last birth date immediately proceeding the date on which the compensation had fallen due as is available in Schedule-IV to the Act. Explanation-II to section 4 (1) elucidates that if the monthly wages of the workman exceeds Rs. 4000/-, the same for the purpose of calculation under Clause (a) and Clause (b) for determining the amount of compensation would be deemed to be Rs.4000/- only. Under 4 (1) (c) where permanent partial disablement results from the injury or injuries if the same (injury/injuries) is/are specified in Part-II of Schedule-I to the Act, the amount of compensation would be such percentage of the sum which would have bee n payable in case of permanent total disablement as specified to be the percenta ge of loss of earning capacity in the said Schedule. In case of injury/injuries not specified in Schedule-I, the amount would be such percentage of the compensa tion payable in case of permanent total disablement as is proportionate to the l oss of earning capacity permanently caused by the injury/injuries. In such a cas e the loss of earning capacity has to be assessed by a qualified medical practit ioner. 12. Explanation-I to section 4 (1) (c) enunciates that where more in jures than one are caused by the same accident, the amount of compensation payab le shall be aggregated, but not so in any case to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. This explanation, in the opinion of this Court, connotes compensation for injur ies limb wise to be permissible. The aggregate amount, however, cannot exceed th e same payable in case of permanent total disablement arising from the same inju ries. Explanation II prescribes that in assessing the loss of earning capacity f or the purpose of determining the amount of compensation payable for permanent p artial disablement resulting from injury/injuries not specified in Schedule I, t he qualified medical practitioner shall have due regard to the percentage of lo ss of earning capacity in relation to different injuries specified in that sched ule. 13. On an analysis of the evidence adduced by the respondent/claiman t, more particularly that of PW 2, the attending doctor as well as the injuries sustained by him (respondent-claimant) and the documents relatable to the treatm ent thereof, the assessment of disablement limb wise and the aggregate thereof a t 50% to indicate the extent of permanent partial disablement cannot be said to suffer from apparent error or infirmity to warrant interference therewith. To re iterate, as per Explanation I to section 4 (1) (c) compensation is payable injur y wise. The ceiling mentioned therein has not been breached while assessing the limb wise disablement in the case in hand. PW 2, while assessing the loss of ear ning capacity to be 50%, was of the categorical view that as a consequence of th e disablement suffered by the respondent/claimant, he would not be able to perfo rm his earlier job as handyman. Apart from the fact that the opinion is of an ex pert in the related discipline, who had been treating the respondent/claimant fo r his injuries, the attention of this Court has not been drawn to any proponent evidence or material to unassailably demonstrate that such assessment of loss of earning capacity of the respondent/claimant has been either perfunctory or with out any basis in violation of the prescriptions contained in section 4 (1) (c) r ead with the explanations thereto. The respondent/claimant at the relevant point of time was earning his livelihood as a handyman in the bus owned by respondent No. 2. This would, per se, testify that he was fit for all intents and purposes only to do manual labour for which absolute physical fitness and cent percent m obility is an uncompromising imperative. There is nothing on record to indicate that inspite of permanent partial disablement, as assessed, he would be physical ly capable, strong and agile to pursue similar activities so as not to suffer an y loss of earning capacity. The evaluation to the extent of disablement and the ensuing loss of earning capacity by the Doctor is assuredly in the realm of spec ialized appreciation of the patient’s condition by applying the relevant paramet ers, the correctness whereof cannot be impeached in absence of factors weighty a nd persuasive enough to the contrary. 14. That the respondent/claimant at the time of the accident was aged 22 years has also not been disputed by the appellant-insurer. 15. In the above view of the matter, except to the extent of application of monthly wages at the rate of Rs. 4000/- in the computation of the amount of com pensation, the impugned award cannot be faulted with. The respondent/claimant ha s categorically mentioned his monthly salary at the relevant time was Rs.2000/-. The amount of compensation, which, he would thus be entitled is 60% x 2000 x 22 1.37 x 50% = 1,32,822/-. The appellant would pay this amount within a period of 30 days from the date hereof. As, it has, meanwhile, deposited the entire awarde d sum of Rs.2,65,644.00 in the office of the Commissioner Workmen’s Compensation , Nagaon, Assam, the learned Commissioner would release an amount of Rs. 1,32,82 2/- to the respondent/claimant and arrange for the refund of the remaining sum t o the appellant/insurer. The appeal is thus partly allowed in the above terms. N o costs.