102-NLR-NLR-V-62-H.-M.-KIRIMUDIANSE-Appellant-and-S.-D.-DAVID-Respondent.pdf
WEERASOORIYA, J-—JCirimudianse o. Davi
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1960Present : Weerasooriya, J.H. M. KIREVITJDIAjSTSE, Appellant, and S. D. DAVID, Respondent
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S. C. 6—Workmen’s Compensation C 30j6484{58
Workmen's Compensation Ordinance {Cap. 117)—Permanent partial disablement —
Computation of compensation—Section 6 (-7) (c) (t), Schedules I and IV.
Where a workman suffered j erraanent partial disablement in consequenceof the loss of the use of the middle, index and ring fingers of his right hand butstill had the full use of the thumb and limited use of the little finger—
Held, that the workman could not be said to have suffered the completeand permanent loss of the use of his right hand so as to bring his case with! ■ theterms of the explanatory note in Schedule X of the Workmen’s CompensationOrdinance.
A PPEAD under the Workmen’s Compensation Ordinance.
Sir Lolita Rajapakse, Q.C., with E. L. P. Mendis, for RespondentAppellant.
R. P. Goonetilleke, with S. M. H. de Silva, for Applicant-Respondent
Cur. adv. vult.
February 9, 1960. Weerasooriya, J.—
The main ground on which this appeal was pressed by Sir LalitaRajapakse is that only a sum of Rs. 1,225/- should have been awarded ascompensation to. the applicant-respondent as against a sum of Rs. 2,205/-
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WEERASOORIYA, J.—Kiritnudianse v. David '
awarded by the Assistant Commissioner. The medical evidence is thatthe injuries suffered by the applicant-respondent necessitated amputationof the middle and index fingers of his right hand, that the ring finger,though saved from amputation, is “as good as useless ” and that thelittle finger is slightly impaired.
As this is a case of permanent partial disablement, the method ofcomputation of compensation as set out in Section 6 (1) C (i) read withSchedules l and IV of the Workmen’s Compensation Ordinance (Cap. 117)would be applicable. Under Schedule I the loss of earning capacityresulting from the amputation of the middle and index fingers and theloss of the use of the ring finger would be only 20%. Counsel for theappellant was agreeable on compassionate grounds to the addition of afurther 5% loss of earning capacity in respect of the impairment to thelittle finger, and he contends that the correct award should, therefore,be Rs. 1,225/-, being 25% of Rs. 4,900/- which under Schedule IV is thecompensation that would have been payable to the applicant-respondenthad he been totally disabled.
The sum of Rs. 2,205/- awarded by the Assistant Commissioner is45% of Rs. 4,900. He accepted the evidence of Dr. de Ronseka that themaximum loss of earning capacity is 45%. At first Ur. de Ronseka putthe loss of earning capacity at 65%, but he admitted that in doing so he“ did not pay much attention to the percentages in Schedule I ”. Itwould seem that even the revised figure of 45% has been arrived atwithout much attention to the percentages in Schedule I.
The applicant-respondent’s counsel contended, in support of theAssistant Commissioner’s award, that the reduction in earning capacityshould be assessed on the basis of the loss of the use of the applicant’sright arm below the elbow. He relied on a passage in the Doctor’sevidence where the injuries are referred to as “ loss of the right armbelow the elbow ”, But this evidence is flatly contradicted by hisearlier evidence that the applicant would still be able to hola with hisright hand an object “ which is not in violent motion ’’, and that hewould have assessed the loss of earning capacity at 80 % if the applicanthad lost his arm below the elbow.
Under Schedule I the loss of earning capacity resulting from loss ofthe right arm below the elbow is 60%. There is an explanatory noteto the Schedule which reads as follows : “ Complete and permanentloss of the use of any limb or member referred to in this Schedule shallbe deemed to be the equivalent of the loss of that limb or member ”.I do not think that the applicant-respondent, who still has the full use ofthe thumb and the limited use of the little finger, can be said to havesuffered the complete and permanent loss of the use of the right hand
so as to bring his case within the terms of the explanatory note.
In my opinion the Assistant Commissioner’s award on thb basis of45% loss in earning capacity cannot be supported, and is set aside,
award the applicant-respondent as compensation a sum of Rs. 1,225/-.While the appeal has been successful to this extent, seeing that in the
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T. S. FERNANDO, J.—Jayasinghe v. Munasinghe
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petition of appeal the appellant took up the position that no compensationat all should have been awarded, he will have only half his costs of appeal.In regard to costs of the proceedings before the Assistant Commissioner,counsel for the appellant has drawn my attention to the fact that on the13th November, 1958, which was one of the dates of inquiry, a postpone-ment was granted at the request of the applicant subject to the paymentby him of the appellant’s costs of the day. The appellant will, therefore,be entitled to the costs of that day but he will pay to the applicant-respondent the costs as taxed of the other proceedings before the AssistantCommissioner.
Appeal partly allowed.