IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH === F.A.O. No. 613 of 1984 Date of Decision: Balmukand --- Appellant Versus Divisional Railway Manager and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Rajnish Narula, Advocate for the appellant. Mr. Nilesh Bhardwaj, Advocate for the respondents. --- AJAY KUMAR MITTAL, J. The pure and simple question that requires consideration by this Court in this first appeal is, whether the compensation awarded to the appellant is less than his entitlement under the provisions of the Workmen’s Compensation Act, 1923 (for short “the Act”), and the amount of compensation payable to him deserves to be enhanced, and if so, to what extent or, in other words, to what amount he is further entitled to. As per the facts available on record, the appellant filed a petition under Section 10 of the Act for grant of compensation. It was averred that on 17.2.1983, he was appointed as Cableman with the Northern Railways and while working at Railway Station, Karnal the appellant met with an accident and as a result of that, his left foot had to be amputated up to 4 inches from bottom. Besides this, the thumb and two fingers of his right foot had also to be cut. The appellant averred that F.A.O. No. 613 of 1984 he was drawing a salary of Rs. 700/- per month from the said employment, at that time. He thus, claimed a compensation in the sum of Rs. 40,000/-. In the reply filed on behalf of the respondents, it was stated that the appellant was not on duty when he met with accident on 17.2.1981 as, on that day, it was his rest day. It was stated that on 17.2.1983, at 8.30 AM, the petitioner suffered some injuries, and he was not entitled to any compensation. The Commissioner under the Act, upon appreciation of evidence and after considering various legal points raised before him, held that the appellant was entitled to compensation of Rs. 9677/- as his capacity to work had been reduced to 36% because of disability suffered by him in the accident, vide award dated 28.5.1984. Not satisfied with the quantum, the appellant-workman is in appeal. I have heard learned counsel for the parties and have gone through the record with their assistance. Learned counsel for the appellant submitted that the amount of compensation awarded by the Commissioner is too meagre and is not in consonance with the provisions of the Act. The counsel submitted that the income of the appellant at the relevant time was Rs. 700/- per month and as per serial No.12 of Part-II of Schedule I appended to the Act, the injury suffered by the appellant and consequently the loss of earning capacity suffered owing to disability due to amputation of left foot up to 4 inches has been defined as 80%. The counsel, thus, submitted that the Commissioner erred in observing that the capacity of the appellant to work had been reduced only to the extent of 36% because of the disability suffered by him. The counsel appearing for the respondent, on the other hand, re-iterated the pleas raised before the learned Commissioner and Pag F.A.O. No. 613 of 1984 submitted that the appellant has not given his age, either in his application for claiming compensation or during the course of his evidence before the Commissioner and, thus, he cannot be awarded compensation merely on the basis of guess work. Refuting the contention of counsel for the respondent, appellant’s counsel submitted that even if the appellant failed to mention his age, the factor for purpose of working out the compensation can be taken by taking the maximum age limit, which is 60 years in the case of the appellant who was a Railway employee. A perusal of the order of the Commissioner would go to show that the appellant had not mentioned his age anywhere, either in his claim application or during the course of his evidence. In these circumstances, the relevant factor thus, deserves to be taken at the maximum level, for purpose of assessing the loss of earning capacity of the appellant. The appellant was a Raiways employee and in his case, the maximum age limit up to when he would have been in service is 60 years and, therefore, the factor of 60 deserves to be taken for working out the lump sum equivalent of compensation. And once the completed years of age of the appellant immediately prior to the date of accident is taken to be 60, the relevant factor to be applied would be 117.41 as indicated in Schedule IV appended to the Act. Now in order to arrive at the amount due to be awarded to the appellant under the Act, it will be seen that he suffered permanent disablement in the shape of amputation of his foot up to 4 inches at the bottom and the percentage of loss of earning capacity mentioned in Part- II of Schedule I is 80. The completed years of age, immediately prior to the accident are to be taken as 60 years as noticed above. According to Schedule IV, the factor for determining compensation is 117.41. The monthly wages that were being drawn by the appellant at the relevant time were Rs. 700/- per month and in view of 80% loss of earning Pag F.A.O. No. 613 of 1984 capacity, the figure would come to be Rs. 560/-. Applying the aforesaid para meters, the amount of compensation would work out to be Rs. 32874/- (Rs. 560 x 117.41 x 50/100). The appellant shall, therefore, be entitled to a sum of Rs. 32,874/- as compensation which is rounded off to Rs. 33,000/-. Needless to mention, the Commissioner has not awarded any interest or penalty and, the appellant shall not be entitled to anything on that account. However, in case the amount of compensation is not deposited within a period of two months from the date of receipt of a copy of this order, the appellant shall be entitled to 12% interest on the amount enhanced under this order, till the date the total amount of compensation is finally paid to the appellant. The amount of compensation shall be deposited with the Commissioner under the Act at Sonepat and paid to the petitioner in accordance with law, forthwith. Accordingly, the appeal is partly allowed and the impugned award dated 28.5.1984 of the Commissioner stands modified in the terms, indicated above. No costs. (AJAY KUMAR MITTAL) May , 2008 JUDGE *RKMALIK* Pag