1. MAKSUM-UL-HAKIM, J.--This is an appeal under section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as W. C. Act).
2. The facts giving rise to this appeal are as follows :--The appellant was a Bus Conductor under the respondent East Pakistan Road Transport Corporation (hereinafter referred to as E.P.R.T.C) and held the badge No, 355. On 8-3-1965, when the appellant was waiting at the Mirpur Depot of the E.P.R.T.C. at about 1-30 p.m., an E.P.R.T.C. bus being EBD 9127 came from the west and knocked him down from behind as a result of which his left leg completely went under the wheel of that bus and he was injured severely in various parts of the body. He instantaniously lost his consciousness and was removed to the Dacca Medical College Hospital by Golam Gaus, the Assistant Yard Master of the Mirpur Depot and others. He was assigned duty to the bus bearing number KBA 2723. The accident took place when he was taking charge from the outgoing conductor of the said bus The appellant after being removed to the Dacca Road Trans. Medical College Hospital, remained there for treatment as indoor patient from 8-3-1965 to 12-1-1966, that is to say, for about a period of ten months. During this period, the appellant was operated upon three times. Even after his release from the hospital, the appellant contended, that his left leg remained permanently disabled and he could not bend his knee-joint nor could he run. He further contended that he could not stand on his left leg for a long time and thus became unfit for physical work. He further contended that due to the accident, over and above sustaining disability in his left leg, he partially lost his eye-sight and hearing capacity. He thereafter lodged his claim with the defendants-respondents for compensation due to loss of his earning capacity. The Administrative Officer of the respondent- Corporation assured the appellant that he would be paid lawful compensation after calculating the sum and asked him to see him on some future occasion. The appellant saw the Administrative Officer for the last time in April 1966, and demanded his compensation. The officer, however, told him that the matter was under consideration. The appellant was examined by Mr. M. Idris, Assistant Professor of Urology, DMCH who certified that he was unfit for active physical work. The appellant therefore, contended that the accident inflicted permanent total disability upon him and as he was drawing a salary of Rs, 128.62 paisa as his monthly wages, so according to the calculation authorised under the Workmen's Compensation Act, 1923. He lodged the W/Misc./Case No, 55 of 1966, in the Court of the Commissioner, Workmen's Compensation, Dacca, for a sum of Rs, 8,400.
3. The Chairman, E.P.R.T.C., filed a written objection contesting the claim of the appellant. In the written objection it was contended that the accident did not take place in the course of the employment as the appellant's only duty was to collect fares from the passengers of the bus and the respondent was not liable if anything had happened to the appellant when he was outside the bus.
4. It was further contended that the driver of EBD 9127 caused the accident willingly out of previous grudge against the appellant and as such the respondent was not liable to give any compensation to the appellant. The respondent further contended that the appellant did not suffer permanent disablement nor was his earning capacity reduced in any way. The respondent contended that a sum of Rs, 300 was paid to the appellant after he sustained the injury though no service was rendered by him thereafter. The respondent, there-fore, contended that the appellant was not entitled to any compensation and as such the compensation case was liable to be dismissed.
5. Alternatively it was pointed out that if any compensation was given then the said sum of Rs, 300 was liable to beadjusted against the compensation if found payable to him.
6. On these pleadings the matter was taken up by the learned Commissioner of Workmen's Compensation, Dacca. In the course of hearing, the appellant examined three witnesses and proved Exh. 1 which is a medical certificate. The respondent, however, refrained from examining any witness in the case but produced two documents marked as Exhs. A and B. After considering these matters on record, the learned Commissioner, Workmen's Compensation arrived at a finding that the place of accident was within the employer's premises and that the accident arose out of and in the course of the appellant's employment under the respondents. He further found that the appellant had joined his duty by reporting himself to the Yard Master Ali Ahmed at 1-30 p.m. and started working under the orders of the said Yard Master when the accident took place. He further opined that taking over charge from the Conductor of the bus by standing on the road is also an essential part of the appellant's duty. The liability of the respondent employer to compensate for the injuries sustained by the appellant was therefore, clearly accepted by the learned Commissioner. This finding has not been challenged by any party in the appeal. In respect of the quantum of compensation receivable by the appellant, the learned Commissioner held that the appellant did not completely and permanently loose the use of his left leg and if he would have lost the use of the left leg permanently and completely, then the percentage of loss of earning capacity under Schedule 1 would amount to 50 per cent. The learned Commissioner further found that as the appellant can still stand a while and also walk a short distance, hence the percentage of the loss of earning capacity is 25 per cent. and, therefore, he awarded 25 per cent. of the total compensation which is receivable under Schedule IV which specifies the amount payable for permanent total disablement. On this calculation the amount came to Rs, 2,100. As the respondents paid a sum of Rs, 300 to the appellant for treatment. So that amount also needed to be adjusted from this amount of Rs, 2,100. After deducting this amount of Rs, 300, the appellant was entitled to get compensation of Rs, 1,800 from the respondents and the learned Commissioner accordingly awarded the said amount for payment to the appellant within two months from the date of the order. In this First Miscellaneous Appeal before us, this order of the learned Commissioner has been challenged by the workman.
7. Mr. Aziz, the learned Advocate for the appellant has contended that the learned Commissioner has erred in law in holding that as the appellant can still stand a while and also can walk a short distance, so the percentage of loss of earning capacity is to be assessed at 25 per cent. He has further argued that the trial Court did not take into account the fact that the injury sustained by the appellant inflicted a permanent total disablement on the appellant in regard to all kinds of work that he was capable of performing prior to the accident. He further argued that the facts and circumstances proved in the case clearly showed that this was an incident of permanent total disablement and not an incident of permanent partial disablement as accepted by the learned Commissioner.
8. Mr. Abdus Sobhan, the learned Advocate appearing for the respondents has contended that the finding of the learned Com-missioner to the effect that the percentage of loss of the earning capacity of the appellant is 25 per cent., is a correct assessment of the position relating to the loss sustained by the appellant and as such the award of the compensation as made by the learned Commissioner should not be disturbed.
9. In our opinion, the conclusion arrived at by the learned Commissioner does not appear to be sound. He based his conclusion on the premises that if an injured workman "had lost the use of his left leg permanently and completely, the percentage of loss of earning capacity under Schedule I would be 50 per cent. As the petitioner can still stand a while and also walk a short distance, I am of the view that the percentage of loss of earning capacity is 25 per cent." In our opinion, this is not a correct and complete approach to assess the loss of earning capacity of an injured workman. In a case under the W. C. Act the primary duty of the Court is to find out whether the disablement is total or partial. In other words, the result of the injury should be clearly and fully considered and it should be found out whether the same produced a result of permanent partial disablement or permanent total disablement: permanent partial disablement as contemplated under section 2(1)
(g) or permanent total disablement as defined in section 2(1)(b) of the W. C. Act. Section 4 of the W.
10. C. Act lays down the scale according to which compensation is to be assessed. Section 4(1) (b) is applicable to a case of permanent total disablement; whereas section 4(1)(c) of the W. C. 4 Act is applicable to a case of permanent partial disablement. It is only in a case of permanent partial disablement that compensation is to be paid according to the percentage of the loss of the earning capacity but in a case of permanent total disablement the amount as mentioned in Schedule IV, as is worked out according to the monthly wages of the workman, is the amount which is payable to him. It is true that in ascertaining whether there has occurred any total disablement or a partial disablement, the nature of the injury and its concomitant result will also have to be considered. This, however, has not been done in this case. It is well settled that in a case of this nature the learned Commissioner has to come to a finding whether the workman has been incapacitated for all work he was capable of performing at the time of the accident or whether the earning capacity of the workman in every employment which he was capable of performing at the time of the accident has been reduced. In the case of total incapacity he is awardable compensation at the rate of total disablement and in the case of reduction of earning capacity he is awardable a compensation at the rate of such reduction. See the case of Muslim Cotton Mills (Pakistan Industrial Development Corporation) v. Din Islam . In the instant case, the appellant has examined Dr, M. Idris, Assistant Professor"of Urology, DMCH and has proved a certificate granted by him after his release, This P. W. 3 (Dr. M. Idris) his stated in his evidence that the appellant had one head injury and also one compound fracture of left femure (left thigh bone) and was under his treatment in the DITCH for a long time. He further stated that the appellant had to undergo operations three times. This witness further stated clearly in his deposition that at the time of his discharge he certified that the workman was unfit for active physical work. This is also1 corroborated by the certificate given by this witness which is Exh. 1 in this case. This witness, however, further stated that by this remark he meant that the appellant could not bend his knee-joint like other normal persons and that he could not run at all nor could he walk for a long time nor could he stand upon his legs for a long time. He further stated that there was no chance that he would get back the full use of his left leg. He cannot work as bus conductor as it involves standing for a long time. He further stated that the appellant had lost 80 per cent. of the normal functions of the left leg permanently, and according to the witness, the appellant, therefore, lost 48 per cent. of the earning capacity permanently. In cross-examination this witness stated that the appellant can stand with the help of a stick and could walk with the help of stick. He, however, added to say that he could not walk without the help of stick. From the evidence of the doctor, the learned Commissioner arrived at a finding that the same established that the workman suffered permanent partial disablement of his left leg. What was however necessary to ascertain from a consideration of the entire materials on record was the effect of the accident and the consequent loss of the earning capacity. That is the crucial question in a case of this nature. The loss of earning capacity, however, should not In misunderstood as one relating to the loss physical capacity. In the case of Agent, East Indian Railway v. Masurice Cecial Ryan . Darbyshire, C. J., with whom Mukherjea, J., concurred observed as follows :- "What has to be estimated is the loss of earning capacity caused by the injury. That is a different thing from the loss of physical capacity. It is the loss of earning capacity. As a surgeon, Mr. Banerjee might well estimate the loss of physical capacity for work, but the loss of earning capacity must be estimated by some other person. The best estimate that can be given is by those people who would have the opportunity of seeing the workman work before and after the accident. They are in a position to judge what the loss of earning capacity is, earning capacity is capacity to earn money."
11. 'This was a case of a gunner guard employed in the East Indian Railway who sustained some injury to his spine due to a collision in between two engines. After the accident the workman was given a lesser employment and was engaged as a clerk. After some time it was found that he could not do that work also. He was thereafter found unfit for any work in the railway and was discharged. It was held in that case that the workman was entitled to the full compensation as his loss of earning capacity was total.
12. In the instant case it was necessary for the learned Comissioner to consider whether the injured workman was capable of undertaking any work which he could perform for the purpose of earning his livelihood prior to his sustaining the injury. In view of the unequivocal medical testimony as corroborated by his certificate Exh. 1, it was inescapable to find that the workman was disabled from undertaking any "active physical work". The workman has deposed that he read up to Class X.
13. It is obvious, therefore, that the type of work which he was acquainted with and capable of performing prior to his sustaining the injury, could no longer be undertaken by him due to the injury sustained by him. In view of the above, it is evident that the reduction of the earning capacity in respect of the works the workman was capable of performing, was total and as such the disability sustained by the workman was one of permanent total disablement. In our opinion, the expression "as incapacitates a workman for all work which he was capable of performing at the time of the accident" as occurring in section 2(1)(b) of the W. C. Act clearly relates only to those kind of work which the workman was capable of performing in relation to his earning of livelihood and does not mean a category broader than that. This is obvious from the context of the legislation itself. This view of ours finds support from the case of Tannoch (Pauper) v. Brownieside Coal Company Limited . This is a decision of the House of Lords wherein section 9, subsection (4) of the Workmen's Compensation Act, 1925, came to be considered. The said subsection (4) was in the following terms : --2 3 "If a workman who has so far recovered from the injury as to be fit for employment of a certain kind proves.......that he has taken all reasonable steps to obtain, and has failed to obtain, such employment, and that his failure to obtain such employment is a consequence, wholly or mainly, of the injury, the Judge shall order that his incapacity shall, for the purposes of this Act, continue to be treated as total incapacity. . . . . . . . . . .
14. In this case (1929 A C 642) a minor lost the sight of his right eye through an accident. Subsequently he became physically able to take up his normal employment. Thereafter he took all reasonable steps to obtain work as a minor or any other suitable employment. His blindness of his right eye, however, affected adversely his chances and b'ecause of this incapacity he could not obtain work as a minor. The learned Law Lords held that the incapacity was a total incapacity and the workman was entitled to compensation on the basis of that total incapacity. The observation of Earl Loreburn in the case of Ball (Pauper) v. William Hunt and Sons Limited is very apt in this regard. His Lordship in explaining the mode of approach on the subject observed as follows :- "In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch."
15. Lord Atkinson respectfully accepted and adopted this observation in the case of Tannoch (Pauper) v. Brownieside Coal Company Limited as mentioned earlier. With great respect we would also like to adopt this guideline in explaining the context of the present statute, namely, W. C. Act, 1923. It is obvious, therefore, that when the appellant-workman has been found to be unfit for active physical work, then his incapacity may be clearly termed as one of permanent total disablement and as such he E is entitled to the full compensation as envisaged in Schedule IV of the W. C. Act, 1923 and to the amount of Rs, 8,400 as claimed by him.
16. Mr. Abdus Sobhan, the learned Advocate for the respondent-Corporation submitted after examining some records that there was a proposal at one time for offering him an alternative employment under the Corporation which needed less physical work. He admitted, however, that this offer does not appear to have been acted upon. The respondents have given no evidence in this case nor have they made out a case in their written objection to the effect that any alternative employment was found suitable for the appellant-workman or that the same was refused by him.
17. As a matter of fact, no question was asked to the appellant when he deposed in this case in this regard. The defence Exhs. A and B also did not support this contention. The appellant's clear case was that he was totally unfit for active physical work which he could perform for earning his livelihood prior to the sustaining of his injury. It is obvious, therefore, that the respondents are not permitted to raise a new point now in this regard.
18. Mr. Aziz, the learned Advocate for the appellant has next contended that the learned Commissioner in assessing the com-pensation has directed a deduction of the amount of Rs, 300 which was paid to the appellant by the respondents when he was in the hospital and undergoing his treatment for the injury.
19. Mr. Aziz has pointed out that proviso (a) of section 4 (1) (D) of the W. C. Act, clearly laid down that payments made to a worker during the period of his convalescence for his medical treatment cannot deducted from the compensation under this section and as such the order of the learned Commissioner in this regard is clearly contrary to law.
20. Mr. Abdus Sobhan, the learned Advocate appearing for the respondent-Corporation has conceded that this deduction is an unauthorised one. After perusing the import of this section, it is clear to us that the payments made during the convalescence of an injured worker which was paid towards medical expenses . cannot be deducted from the compensation payable to him as stipulated under section 4 of the W. C. Act, 1923. In view of the above, the deduction is clearly unauthorised4 and should be eliminated.
21. The result, therefore, is that this appeal is allowed and the appellant worker is declared to be entitled to get Rs, 8,400 (Rupees eight thousand and four hundred) in all as compensation as provided under Schedule IV of the W. C. Act, 1923, for his permanent total disablement. The respondent-Chairman, E.P.R.T.C., is directed to deposit the said amount in Court within two months from the date of this order. If any amount already deposited by the respondent-Corporation in the Court of the Commissioner, Workmen's Compensation, Dacca, then the balance of the amount of Rs, 8,400 should be so deposited within the period stipulated as above.
22. The appellant worker is entitled to his costs throughout and we order accordingly.
23. T. H. KHAN, J.--I agree. 11 D L R 165 AIR 1937 Cal. 526 1929 A C 642 1912 A C 496