IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 68 of 2004()
1. K.V.JOSE, KONGOTHARA HOUSE,
... Petitioner
Vs
1. EMPLOYEES STATE INSURANCE CORPORATION
... Respondent
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.T.V.AJAYAKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/06/2008
O R D E R
M.N.KRISHNAN, J
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INS.A. No.68 OF 2004
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Dated this the 16th day of June 2008
JUDGMENT
This appeal is preferred against the award of the Employees’
Insurance Court, Palakkad in ICA.No.6/2002. The appellant was an
employee of the Vaigi Thread Processors Ltd. He sustained employment
injuries. A perusal of paragraph 10 of the award would reveal that the
Medical Board comprising of six Doctors including an Orthopedic Surgeon
had assessed the disability of the claimant at 40% and another Doctor who
examined him had assessed his disability at 43% and the loss of earning
capacity at 100% having regard to his job as a Tube Winter in Vaigi
Thread Processors Ltd.. The Tribunal accepted the disability certificate of
the Medical Board at 40% and granted compensation accordingly. It is
against that decision the claimant has come up in appeal.
2. How the disability has to be assessed has been laid down in the
Full Bench decision of this Court in Vanajakshan v. Joseph(2003(2) KLT
462(FB)). It was a case with reference to Workmen’s Compensation Act.
The guiding principle therein is that the compensation has to be determined
INS.A.No.68/2004 -:2:-
with reference to the loss in earning capacity and not the ability to perform
the duties of the job, which was being done by the workman at the relevant
time. The compensation has to be assessed on the basis of the percentage of
the loss of earning capacity. While determining the loss of earning capacity,
the authority has to keep in view the loss of capacity of a workman “for all
work which he was capable of performing” and not for the work which he
was actually doing. So this is the principle that has to be followed in cases
where disability arises and the percentage of disability is to be determined.
Now it is not clear from the award that 40% disability assessed by the
Medical Board relates to the loss of earning capacity of that particular
individual with reference to the whole work which he was capable of doing
at the time of accident. So a reconsideration is necessary and therefore I set
aside the order passed by the Employees’ Insurance Court and remit it
back to the same court for consideration regarding this point. It is desirable
that the person is again referred to a Medical Board and the permanent
disability as well as the loss of earning capacity of that person with
reference to the work which he was capable of doing at the time of the
accident be assessed and thereafter the matter be disposed of in accordance
with law. The court below is directed to issue notice to the parties fixing
the date of appearance and give them sufficient opportunity to substantiate
INS.A.No.68/2004 -:3:-
their contentions.
Ins. Appeal is disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-