IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 98 of 2005()
1. K. THYAMPANNA, S/O. SUBHANNA POOJARI
... Petitioner
Vs
1. SRI. A. HARISHA, S/O. LATE REGHU,
... Respondent
2. THE BRANCH MANAGER, NATIONAL
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.E.M.JOSEPH
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.F.A.No.98 OF 2005
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Dated 7th November, 2008
JUDGMENT
Koshy,J.
Appellant/claimant sustained injuries in a motor accident
during the course of employment. He filed an application for
compensation claiming an amount of Rs.2,00,000/=. As a result of the
accident, he sustained fracture of fibula and tibia of the left leg apart
from the abrasions. According to the claimant, he was an autorickshaw
driver by profession and the accident occurred while he was driving the
autorickshaw. He cannot drive the vehicle after the accident and he is
entitled to compensation for 100% disability and loss of earning power.
He produced Ext.A3 disability certificate wherein the Civil Surgeon of
Government Wenlock Hospital, Mangalore certified that there is 20%
permanent disability, but, loss of earning capacity is not certified. The
Commissioner did not accept Ext.A3 certificate merely because signature
of the claimant was not in the certificate. But, it is a certificate issued in
the official form by the District Medical Officer. Considering the injuries
in the wound certificate, there was no reason for rejecting Ext.A3
certificate which assess the physical disability of fibula and tibia. It is
not stated that there is 20% occupational disability. However, long
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distant driving will be difficult and he will not be able to stand for a
long time. Considering these facts, we are of the opinion that at least
10% loss of earning power has to be assessed by the Commissioner.
It is true that what was suffered by the appellant is not a schedule
injury. Therefore, disability has to be assessed as provided under
section 4(1)(c)(ii) of the Workmen’s Compensation Act. The
Commissioner is bound to assess the disability on the basis of the loss
of earning capacity as assessed by the qualified medical practitionner
as to the proportion of the loss of earning capacity in the schedule.
Considering the schedule injury of amputation of one leg and also
considering the physical disability as certified by the doctor, only 10%
loss of earning capacity can be fixed. The accident occurred before
the amendment of the Act by Act 46 of 2000. The maximum income
that can be taken into consideration for calculation of compensation is
only Rs.2,000/= as against Rs.3,500/= fixed by the Commissioner.
The appellant was aged 41. The relevant factor for 41 years as per
the schedule is 181.37. If that be so, compensation payable will be
Rs.21,764/- (2000 x 60 x 10 x 181.37), rounded to Rs.21,700/=. The
100 100
Commissioner awarded Rs.10,500/=. So, the additional compensation
payable will be Rs.11,200/=. The above amount of Rs.11,200/=
should be deposited by the second respondent insurance company
with 12% interest from the date of accident, i.e. 4.10.2000, till its
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deposit. On deposit of the amount, the appellant is allowed to
withdraw the same.
The appeal is partly allowed.
J.B.KOSHY
JUDGE
THOMAS P. JOSEPH
JUDGE
tks