-1- IN THE HIGH COURT OF BOMBAY AT GOA APPEAL UNDER WORKMEN'S COMPENSATION NO. 1 OF 2002 Shri Soman Nair, M/s. K. N. S. Enterprises, Carpentry Saw Mill, Shantinagar, Mangor Hill, New Vaddem, Vasco da Gama. ...... Appellant V e r s u s Shri Kashinath V. Badiger, C/o. Villupakshi Badiger, Salgaonkar House, Cortalim, Goa. ...... Respondent Mr. N. N. Sardessai, Advocate for the Appellant CORAM: A. P. LAVANDE, J. DATE: 15 th October, 2008. ORAL JUDGMENT Heard Mr. N. Sardessai for the appellant. Respondent though served, has not put in appearance. 2. This appeal under Section 30 of the Workmen's Compensation Act, 1923, was admitted on 17.01.2002. However, no substantial question of law as required under Section 30 of the Act was framed at the time of admission of the appeal. 3. Since no substantial question of law was formulated at the time of admission after hearing Shri Sardessai for appellant, the following substantial -2- question of law is framed : "Whether the Commissioner could have held that the disability was 50% when medical certificate issued by the doctor to whom the respondent no.1 was referred by the Commissioner, disclosed that the disabilioty was 20% ?" 4. With the consent of Mr. Sardessai for the appellant, the appeal is being finally heard on the substantial question of law formulated above. 5. Briefly, the facts relevant for disposal of the present appeal are as under: The respondent no.1 claimed that he was employed with the appellant as Carpenter. According to the Respondent, on 1.10.1996, he was on duty and he started work of cutting the plank on the round blade of the machine when the plank slipped, as a result of which, he fell down on the blade due to which his three fingers of the left hand were injured and the thumb was amputated. 6. Since the appellant did not pay any compensation, the Respondent filed an application dated 29.10.1996 claiming compensation from the appellant. Before Commissioner, respondent examined himself and two witnesses namely Chandrakant Badiger and Virupakshi Badiger. The appellant examined Shri K. N. Nair, Mr. Remy Fernandes and T. T. Krishnan. During the pendency of the proceedings before the Commissioner, Commissioner referred the respondent for medical examination to Goa Medical College. Dr. Carlos Barretto, Asst. Professor, Department of Orthopaedic Surgery, Goa Medical College, issued certificate dated 28.02.1997 certifying that respondent no.1 had suffered permanent disability of -3- 20%. 7. After appreciating the evidence led by the parties, Commissioner by the impugned Order dated 28.12.1999 held that respondent had suffered total disablement on the ground that the evidence given by the respondent established that he could not do work with his hand as the thumb had been totally amputated and three fingers gave him unbearable pain if he tried to work. The Commissioner further held that the disability should be considered as 100% but further held that the disability could be rated as 50% as it had the respondent disabled functionally as far as operations for his left hand were concerned. 8. Mr. Sardessai, learned Counsel for the appellant, submitted that since the Certificate issued by the Doctor disclosed that respondent had suffered 20% disability, the Commissioner could not have held that disability was 100%. He further submitted that in any case the finding given by the Commissioner that disability can be considered as 50% is contradictory to the finding given earlier that disability should be considered as 100%. He, therefore, submitted that the impugned Order be set aside and the matter be remanded to Commissioner for fresh decision. 9. As stated above, respondent has chosen not to put in appearance. 10. Perusal of impugned Order discloses that Commissioner has recorded a finding that the disability suffered by respondent should be considered as 100% but -4- he has further held that the same can be rated as 50% on the ground that the respondent has been disabled functionally. Mr. Sardessai is right in his contention that the findings given by the Commissioner are self contradictory and, therefore, it is difficult to understand as to on what basis the Commissioner has considered disability at 50% for computing the compensation payable to the respondent. In my considered opinion, on this ground alone, the impugned Order is liable to be set aside and the matter remanded to Commissioner for fresh decision. Accordingly, the impugned Order dated 28.12.1999 is set aside. The Commissioner shall give notice to parties and after hearing the parties, if they chose to appear, decide the application by passing fresh Order. The Commissioner shall decide the nature of disablement sufferred by respondent and also the loss of earning capacity and fix the compensation in accordance with the provisions of the Workmen's Compensation Act. The Commissioner shall dispose of the application filed by the respondent expeditiously and, in any case, on or before 31.01.2009. The amount deposited by the appellant before the Commissioner shall be subject to the final Order that will be passed by him. 11. In view of the above, impugned Order dated 28.12.1999 is quashed and set aside and the appeal is disposed of in the above terms. Since the respondent has chosen not to put in appearance, there shall be no order as to costs. A. P. LAVANDE, J. arp/*