FA/255/1986 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 255 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== GOVINDBHAI BHANABHAI TADAVI Versus DEPUTY ENGINEER AND ANOTHER ====================================== Appearance : MR MTM HAKIM for Appellant. MR DR CHAUHAN, AGP for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/07/2008 ORAL JUDGMENT 1. By way of this appeal, the original claimant has approached this Court against judgment and order of Civil Judge (S.D.), Bharuch dated 15th October 1985, whereby the application preferred by the present appellant was dismissed. FA/255/1986 2/6 JUDGMENT 2. The case of the appellant is that he was working in the department of present respondent as a labourer since 21st July 1980 and he met with an accident in a bleaching plant on 11st September 1984. At that time, he got an electrical shock on his body because of electrocution. Thus, the applicant has received injuries during the course of employment. The factum of injury is not in dispute. Only question which was raised for consideration in this appeal is whether the observations made by the authority in paragraph 7 of its judgment relying upon the decision of the Punjab and Haryana High Court reported in AIR 1964 Punjab 512, and on the basis of the same, application was rejected. Learned trial Judge has observed as under in paragraph 7 of his judgment. “7. Shri Shah L/a. of the applicant has vehemently argued that there is no guarantee to continue the applicant on duty after judgement of this court and therefore, the compensation should be awarded in favour of the applicant. It is pertinent to note that the Hon'ble Punjab High Court has considered this aspect also in the above cited authority in the following words:- “I would, however, like to add that should the appellant be discharged by his present employer and is compelled to seek employment elsewhere at a reduced wage he would be entitled to prefer his claim once again under sub-clause (ii) of clause (c) of Sub- sec. (1) of sec.4. In the view which I take the compensation payable as a result of permanent total disablement has to be related to a loss of earning capacity and there being no loss of earning capacity at present the claim does not fall under this provision. FA/255/1986 3/6 JUDGMENT There will be no order as to costs.” In the present case, if opponents employer discharges, the applicant from his duty then, he is at liberty to file a case under the provisions of the W.C.A. but at present, as there is no loss of earning capacity, I am of the opinion that the present applicant for compensation is not legally maintainable and derserved to be dismissed. Hence, I decide issue No.5 and 8 in the negative.” 3. It is also found by the trial Court that since the appellant is in service, he has not lost his earning capacity. 4. Learned counsel for the appellant, Mr.Hakim submitted that learned trial Judge has erred in observing that if the applicant is discharged from his duty, then he is at liberty to file a case under the provisions of Workmen's Compensation Act but at present since there is no loss of earning capacity, application for compensation is not legally maintainable. In support of his argument, learned advocate has relied upon decision of this Court in the case of State of Gujarat v. Rajendra Khodabhai Deshdia and another reported in 1991 ACJ 638, and submitted that in view of paragraphs 8 and 9 thereof, this appeal is required to be allowed. “8. With utmost respect for the learned single Judge of Punjab High Court it is difficult to agree with the view taken by him. The Commissioner for Workmen's Compensation is required to determine the loss of 'earning capacity' resulting from the accidental injury. He is not required to determine the increase or decrease in earnings of the workman. FA/255/1986 4/6 JUDGMENT Earnings of the workman may increase or decrease or it may remain the same even after the accident and the injuries suffered by the workman. Earnings may increase on account of the general conditions of the employment or on account of the sympathies of the co-workers, who in a given case may support the co-worker on account of the physical disabilities suffered by him due to accidental injuries and may not allow him to suffer economic loss. But these are circumstances and factors which are irrelevant as far as the determination of loss of 'earning capacity' is concerned. There need not be confusion between 'earning' and 'earning capacity'. This aspect is discussed by the learned single Judge of Bombay High Court in the case of Mangru Palji v. Robinsons, 1978 Lab & IC 1567. The learned single Judge of Bombay High Court has followed the Calcutta High Court in the case of Calcutta Licensed Measures v. Md. Hussain, 1969 ACJ 92 (Calcutta). We are in agreement with the view taken by the learned single Judge of Bombay High Court. 9. Under the provisions of the Workmen's Compensation Act, 1923, once it is proved by the workman: (i) that he is a workman, and (ii) that he has suffered injury by accident in the course of his employment, the liability of the employer to pay compensation is established. If the injury received by the workman is a scheduled injury, the minimum amount of compensation which the workman would be entitled to claim would be FA/255/1986 5/6 JUDGMENT commensurate with the deemed loss of earning capacity as indicated in the Schedule. In case where the workman received non-scheduled injury, he will have to show by leading evidence as to what is the loss of earning capacity suffered by him on account of the accident. If the employer wants to prove that he was not liable to pay compensation, the onus lies on the employer to establish that there were circumstances in the case which confer immunity against the liability to pay compensation.” 5. Mr.D.R.Chauhan, learned AGP for the respondent submitted that the authority has taken into consideration the interest of the applicant and in case his services are terminated his right is kept open. In that view of the matter, learned AGP supported the judgment of the trial Court and submitted that the view taken by the trial Court is just and proper. 6. I have heard learned advocate for the appellant, Mr.Hakim as well as learned AGP, Mr.Chauhan, who is appearing for the respondent. In view of the fact that the employee has suffered injury during the course of employment, and keeping in mind that the very object of the Act is to compensate the employee, who suffered injury during the course of employment and in view of Division Bench judgment referred to herein above, I am of the opinion that the employee is required to be compensated in terms of scheduled injury as his right hand is totally amputated and as per the scheduled injury, he has received injury to the extent of 90%. As per the finding of the authority, on the date of the accident, the appellant was earning Rs.390/- per month, and multiplier of 216.91 will apply. Accordingly, the amount of compensation can be counted as under: 216.91 X 390/2 X 90/100 = Rs.39,067.65 FA/255/1986 6/6 JUDGMENT 6.1 Accordingly, the employee will be entitled to get Rs.39,000/- as compensation amount with interest at the rate of 6% from 2nd April 1985, the date on which he preferred an application for compensation. Thus, the respondents are directed to pay an amount of Rs.39,000/- towards compensation and an amount of Rs.54,600/- as interest amount at the rate of 6% from 2nd April 1985 to 31st July 2008. Thus, the appellant is entitled to total amount of Rs.93,600/- upto 31st July, 2008. The aforesaid amount should be paid on or before 31st October 2008. If the amount is not paid on or before 31st October 2008, the appellant will be entitled to recover 6% interest on Rs.93,600/-, which may be recovered from erring officer for delay of payment. 7. In view of above directions, this appeal is allowed with no order as to costs. (K.S.Jhaveri, J.) /malek