SABYASACHI MUKHARJI,J. - (1.) This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 from an order of the Additional Commissioner for Workmen's Compensation dated 12th February, 1971.
(2.) THE respondent filed a claim for compensation on the allegation that while working in the appellant's colliery on 1st March, 1968, he suffered injuries to his left foot and toes causing permanent partial disablement entailing loss of earning capacity to the extent of 25%. It has to be mentioned that orignially the claim was filed on 20th March, 1968, claiming loss of earning capacity to the extent of 10%. The amendment petition was filed on the 5th October, 1969, and from the records produced before us it appears that a copy of the said amendment petition was handed over to the advocate for the appellant on 9th October, 1969. On the 9th October, 1 69, the amendment petition was taken up for consideration by the learned Commissioner and the prayer was allowed and time was given to the appellant to file additional written statement. Before we deal with the merits of this case, one of the points that was urged in this appeal was that the Commissioner was in error in allowing this amendment petition, It appears that under Section 10 of the Workmen's Compensation Act the claim has to be lodged within two years from the date of the accident, The application for amendment was made within Me aforesaid time Counsel for the appellant, however, contended that there was no specific power of granting amendment by the Commissioner for Work -men's Compensation. He drew our attention to Central Rules, namely, Workmen's Compensation Rules, 1924, specially Rule 41 and it was urged that the provisions of the Code of Civil Procedure in so far as these dealt with the power of the Courts to allow amendment were not the subject -matter of the said Rule 41 of the Workmen's Compensation Rules, 1924. Under Section 19 of the Workmen's Compensation Act it is provided that when the question arises as to the liability of a person to pay any person compensation including any question as to whether the person injured in or is not a workman or as to the amount or duration of compensation including any question as to the nature or extent of disablement, such a question, in default of agreement, will be settled by the Workmen's Compensation Commissioner. Therefore, under Section 19 the Commissioner has the obligation to settle if a dispute arises or a question arises in respect of the aforesaid matters. Section 23 gives the Commissioner the power of a civil Court under the Code of Civil Procedure for the purpose of taking evidence and compelling attendance of witness and evidence. There is no specific section under the Act dealing with the other powers of the Commissioner under the Code of Civil Procedure but Section 34 of the Act empowers the Central Government to make rules to implement the provisions of the Act. As mentioned hereinbefore, under the Workmen's Compensation Act, 1923, rules have been framed and our attention was drawn to Rule 41. The said Rule 41 does not specifically deal with the question of amendment. Under Section 19 of the Act the Commissioner has to settle the claim, if the question cannot be settled by agreement. Therefore, it must be presumed that in furtherance of the powers of setting the Commissioner should have all the incidental and ancillary powers unless the statute provides to the contrary In this connection reliance may be placed on Halsbury's Laws of England, Vol. 36 page 436 Even though, therefore, the Commissioner has power to allow an amendment within the period of limitation as was done in this case, the said power must be exercised in consonance with the principles of justice: and should be exercised by giving such reasonable opportunity to the opposite parties as are necessary in a particular case. In this case, counsel for the appellant contended that no date had been fixed by the learned Commissioner for adjudication of the application for amendment. That is perhaps so, as it appears from the records. It appears, however, that the copy of the application of the proposed amendment was served and no specific opportunity was sought by the appellant to oppose the said application. In the additional written statement filed by the appellant in answer to the amendment claim no point was taken that the amendment was allowed without giving reasonable opportunity to the appellant. Therefore, though strictly speaking there was some irregularity in allowing the application for amendment in this case no injustice has been caused to the appellant by the procedure followed. But the Workmen's Compensation Commissioner should try to ensure as the situation of the case demands to give such opportunities to the parties as may be necessary to make such representation against any proposed amendment.
(3.) FROM the judgment of the learned Commissioner for Workmen's Compensation it appears that only one issue was framed for decision, namely: Has the applicant sustained any permanent partial disability involving loss of earning capacity? If so, to what extent ? The learned Commissioner records that the only point contended by the appellant was that the respondent had not suffered any permanent disablement as a result of the minor injuries suffered by him at his left foot only. The respondent belonged to the wage group between Rs. 150 and 200 per month. On behalf of the respondent he himself gave evidence. He stated in his evidence that he had sustained injuries to his left foot and toes and felt much pain and was treated for six months and was under plaster. The respondent has further stated that he was unable to work then. He was cross -examined on behalf of the appellant. It was suggested that he had resumed job on 21st May, 1968, and thereafter had left his job. The respondent denied the said suggestion. It was further suggested to him that the appellant did not discharge him. The respondent also denied the said suggestion. On behalf of the respondent one Dr. D. K. Roy Choudhury gave evidence. His evidence was the medical evidence on behalf of the respondent and he stated that he had examined the applicant and he proved the certificate which was given by him as also the X -ray plate which was marked as Ext. 2. In cross -examination he admitted that he had not seen any medical papers and further stated that the respondent could walk with great difficulty and by limping. According to the said 'doctor, the respondent had suffered physical disability which he assessed at 25%. The said doctor denied that the said assessment was high.;