COMMISSIONERS FOR THE PORT OF CALCUTTA Vs. AJIT KUMAR GOSH
LAWS(CAL)-1970-2-30
HIGH COURT OF CALCUTTA
Decided on February 12,1970

COMMISSIONERS FOR THE PORT OF CALCUTTA Appellant
VERSUS
Ajit Kumar Gosh Respondents

JUDGEMENT

Sabyasachi Mukharji, J. - (1.) THIS is an appeal from the order of the Additional Commissioner, Workmen's Compensation, West Bengal. The facts are shortly as follows: -On 30th September, 1964 Ajit Kumar Ghose filed an application for compensation. His case was that he was a workman employed by the Commissioner for the Port of Calcutta and he received personal injury by accident arising out of and in the course of his employment on the 19th of June, 1964. He has stated that he was working as a Storeman in the Item No. 258, Section Senior Ship Wright Department, C.M.E., at "Island Brooks Top" at 14, Garden Reach Road, Calcutta at the Godown, when he fell down from the ladder, as a result whereof he sustained injuries in the left wrist. He has stated he was in monthly wage group of Rs. 200/ - to Rs. 300/ -and he claimed a compensation of a sum of Rs. 4,480/ - calculating the same @ 40% loss of earning capacity. In the written statement the Commissioners for the Port of Calcutta admitted the employment but denied the accident. They also denied the rate of wages as claimed by the Applicant. They further denied the nature of the injury and accordingly prayed for the dismissal of the claim. The Commissioners for the Port of Calcutta after filing the original written statement filed an additional written statement but as it was filed late it was ordered on the 2nd February, 1967 that the additional written statement would be accepted on payment of costs as condition precedent by them. As costs as directed were not paid, the additional written statement was not accepted. The following issues were settled by the learned Additional Commissioner of Workmen's Compensation, West Bengal - - (1) Was the Applicant a 'workman' within the meaning of Workmen's Compensation Act" (2) Did the accident arise out of and in the course of the Applicant's employment under the opposite party ? (3) Has the Applicant sustained any permanent partial disablement ? If so, to what extent ? (4) What is the monthly rate of wage of the Applicant? (5) Has the Applicant suffered any diminution in his earning capacity and, if so, to what extent ? (6) What compensation, if any, is the Applicant entitled to ? On the first two issues, in his judgment dated 18th of November, 1968, the learned Additional, Commissioner, Workmen's Compensation, West Bengal held that the claimant was. a 'workman' within the meaning of Workmen's Compensation Act and he met with an accident on 19th June, 1964 as alleged during the course of his employment under the opposite party. On the third issue, the learned Additional Commissioner held that the claimant had suffered permanent partial disablement to the extent of 15%. On the Fourth issue the learned Additional Commissioner was of the opinion that claimant was in a monthly wage group of Rs. 150/ -to 200/ - at the time of the accident. On the Fifth and Sixth issues the learned Additional Commissioner came to the conclusion that the claimant had suffered diminution in his earning capacity to the extent of 15% and calculating the same on the basis of his finding the learned Additional Commissioner came to the conclusion that the claimant was entitled to compensation for the sum of Rs. 1,074.97 paise. He ordered accordingly. Being aggrieved by the said judgment the Commissioners for the Port of Calcutta, the Appellants herein, have preferred this appeal under the Workmen's Compensation Act.
(2.) MR . Mukherji, learned Advocate for the Appellant, contended before us that there was no evidence upon which the learned Additional Commissioner could come to the finding that the Respondent was a workman under the Workmen's Compensation Act. Mr. Mukherji next urged that there was no evidence at all of the loss of earning capacity and as such no basis upon which the learned Additional Commissioner has awarded the compensation. So far as the first contention is concerned, Mr. Mukherji contended that the evidence showed that the Respondent was a clerk and not a storeman. Unfortunately for Mr. Mukherji's client this fact was not stated in a written statement. The second written statement was not admitted and in the facts and circumstances of this case, we must hold that it was properly not admitted. Indeed before us Mr. Mukherji has not made any point showing that non -admission of the additional written statement in view of the conduct of his client was not justified. It must therefore be held that the learned Additional Commissioner was justified on the basis of the first written statement in holding that the Applicant was a storeman. There was evidence before him that the Respondent used to carry goods by his own hands though not on his head. There was further evidence, that it was the duty of the claimant to receive goods and deliver goods by hand. It is not possible for us to weigh, the sufficiency of evidence. Therefore we are unable to accept Mr. Mukherji's first contention.
(3.) SO far as the second contention of Mr. Mukherji is concerned, it requires a little detailed examination Mr. Mukherji's grievance was that there was no evidence showing that the earning capacity of the workman -had decreased. Under Section 2(1)(g) of the Workmen's Compensation Act, 1923 "partial disablement" means, where disablement is of a temporary nature that which reduces, the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and where the disablement is of a permanent nature such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time. It is also provided by the said clause that every injury specified in Schedule I shall be deemed to be permanent partial disablement. The present case is not of course of any type of injury specified in schedule I of the said Act. For the determination of the amount of compensation where there is permanent partial disablement from injury it is provided by Section 4C of the Workmen's Compensation Act, 1923 as follows: 4(c) Where permanent partial disablement results from the injury - - (i) in the case of an injury specified in Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity, permanently caused by the injury.;


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