Decided on July 01,1958

Mohanlal Ajitsaria Appellant
Abdul Rasid Respondents

Referred Judgements :-



SARJOO PROSAD,J. - (1.)THIS is an appeal under Section 30 of the Workmen's Compensation Act, 1923 (Act VIII of 1923), against an order dated 21 -4 -1956 passed by Mr. R.H. Shaw, Deputy Commissioner, Sibsagar, acting as Commissioner under the Workmen's Compensation Act. By the order in question the Commissioner has awarded a sum of Rs. 1,470/ - as compensation to the respondent under Section 4(c)(ii) of the Act.
(2.)THE short facts are that on 27 -2 -1947 the respondent Abdul Rasid sustained an injury while on duty in a mill then belonging to the appellant where he was the head fitter. As a result of this serious injury he fractured his pelvic bone. He was taken to the Mission Hospital on 2 -3 -1947 for treatment from where he was released on 10 -3 -1947.
His case is that this was due to the fault of the management which did not care to give him proper medical aid. He then got himself admitted in the Government hospital at Jorhat for treatment on 15 -4 -1947 and was released from there on 23 -4 -1947; later, he also proceeded to the Dibrugarh Government hospital on 6 -5 -1947 where he was duly examined under X -ray; but, he says that due to lack of prompt and proper medical aid, by the management, he became permanently lame and lost his ordinary earning capacity. The Union to which he belongs, on those facts, presented a petition on 4 -2 -1948, claiming compensation from the management of the mill as laid down by the Rules, on account of his permanent partial disablement. On an earlier occasion, his petition was summarily rejected by the then Commissioner Sri B.L. Sen without even giving him a hearing. The order was accordingly set aside by this Court and the case remanded to the Commissioner for disposal according to law. This was on 21 -12 -1950. The said Commiser after taking evidence in the case and hearing the parties, again dismissed the claim on 4 -6 -1951. The petitioner, therefore, moved this Court against that order, which was set aside on 15 -12 -1953. The Court found that the injury was caused to the workman in the course of his employment; as such, he was entitled to compensation and the Commissioner was in error in assuming that the workman had voluntarily and unnecessarily exposed himself to an added peril for which the management could not be liable. The Court, therefore, directed that the Commissioner should rehear the case on certain issues which it framed for the purpose and then dispose of the matter. These issues are: '(1) Whether the injury has been aggravated and the aggravation has occurred in the circumstances which bring the case within the purview of Clause (6) of Section 11; 2. If so, is the workman entitled to any compensation for partial disablement, temporary or permanent, which may be deemed to have occurred if the workman had been regularly attended by a qualified medical practitioner whose instructions he had followed.' By the order now under appeal, the present Commissioner has found these issues in favour of the workman and directed payment of compensation as aforesaid.

This appeal has, therefore, been preferred by the proprietor of the mill, Mohanlal Ajitsaraia. It is contended for the appellant that the workman is not entitled to compensation, because the aggravation of the injury was due to his own fault in not attending to the direction of the medical authorities whose services had been offered to him.

It is argued that Clause (6) of Section 11 applies to this case. The said clause provides 'inter alia' that where an injured workman, who has been attended regularly by a qualified medical practitioner, has deliberately failed to follow his instructions and 'that such refusal, disregard or failure was unreasonable in the circumstances of the case and that the injury has been aggravated thereby, the injury and resulting disablement shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had been regularly attended by a qualified medical practitioner whose instructions he had followed, and compensation, if any, shall be payable accordingly.' It is urged that if he had attended to the advice of the doctor, his injury would have been duly cured and he should therefore, have no compensation at all. Reliance has been placed in this connection on the evidence of the doctor of the Mission Hospital, Dr. P. C. Roy. The doctor says that the workman was brought to his hospital with a fracture of the thigh bone, which had broken near the neck of the bone. According to him, the patient was put in splints but the patient himself removed the splints on the fourth day and left the hospital at his own risk against medical advice. The Doctor says that the fracture might have been otherwise cured. The Commissioner has not found it possible to act on the Doctor's evidence. He points out that although the incident happened on 27 -2 -1947, he was not taken to the Mission Hospital until 2 -3 -1947, which fact alone shows that the owner of the mill was not keen about the treatment of the worker and in giving him prompt medical aid. The statement of the Doctor that he removed the splints of his own accord on the fourth day and left the hospital is not easy to accept. The subsequent conduct of the patient shows that he was anxious for his recovery from the injury and he would not have willingly left the hospital except for good reasons. The workman deposes that the management did not provide for his medical attendance properly and he was, therefore, taken back from the Mission hospital. He took the help of another Doctor and subsequently went to the Civil Hospital at Jorhat; since he was not cured even there, he went to the Dibrugarh hospital. He says that in spite of all his attempts, he has become permanently crippled in that leg. Two other witnesses, Hari Ram and Bhaku Ram have also supported him on the point. They both say that it was at the instance of the manager of the mill that Abdul Mistry was removed on the fourth day from the Mission hospital. Bhaku says that he was not cured till then. Another Doctor, Dr. Mahendra Nath Sarma, an Assistant Surgeon of the Civil Hospital (Jorhat), proves that Abdul Rasid was admitted in the hospital on 15 -4 -1947, for old fracture of the neck of the femur. He was discharged from the hospital on 23 -4 -1947. It was a case of both callous formation and deformed fracture. It was a permanent injury and according to this Doctor, a man having such an injury would not be able to walk normally though he could do his work, if he could work sitting. The Doctor admits that such cases may be cured completely; but the fact remains that in this case it was not cured. Another retired Sub -Assistant Surgeon, Dr. M. H. Hazarika, also proves that he was called one day in the middle of May 1947, for treatment of Abdul Rasid and he directed him to go to Dibrugarh immediately for prompt treatment. It is, therefore, obvious that it was not due to any fault of the workman that there was any aggravation of the injury. If at all, the fault lay with the management, who did not offer him prompt and qualified medical help and even when he was taken to the Mission hospital a few days after the accident, he was shortly thereafter removed from that hospital without being properly cured. On those materials, the Commissioner was justified in holding that the case was not covered by Clause (6) of Section 11. The cases cited by the appellant in support of his contention depend on their own facts and do not affect the present case.

(3.)THE next question is about the amount of compensation payable to the workman. It has been found that though the workman has not been completely deprived of his leg as a result of the injury, he has at least been permanently crippled in that leg. The Commissioner holds that it was a case of permanent partial disablement as a result of the injury; and inasmuch as the injury in question was not specified in Schedule I of the Act, he fixed the compensation under Section 4(1)(c)(ii) at 30 per cent. of the amount shown in the table laid down in Schedule IV of the Act.
It is contended for the appellant that it had to be strictly proved in this case that the compensation was proportionate to the loss of earning capacity permanently caused by the injury. It is argued that there is no evidence of any such loss of earning capacity in the present case and a number of decisions have been cited to show what this loss of earning capacity means. It has also been argued that it is not a case of permanent partial disablement at all. Our attention has been drawn to the list of Injuries mentioned in Schedule I of the Act and it is suggested that the injury complained of in the present case does not occur in the table. Schedule I mentions loss of leg at or above the knee, but not any crippling of the leg. But it is obvious that the Act contemplates other instances of per manent partial disablement, resulting from injury than those specified in the Schedule. This is apparent from Sub -clause (ii) of Section 4(1)(c) and the Commissioner has, therefore, acted under that section in fixing the amount of compensation. The question whether there was adequate material on which the Commissioner could fix the proportionate loss in the earing capacity of the workman has presented some difficulty.

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