IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1383 of 2002(C)
1. NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. K.S. VELUNNY, S/O. SANKARAN,
... Respondent
2. GEEVARGHESE BABY, J.B. ROAD WAYS,
3. UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.LAL GEORGE
For Respondent :SRI.P.V.CHANDRA MOHAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :15/02/2008
O R D E R
J.B. Koshy & K.Hema, JJ.
————————————–
M.F.A. No.1383 of 2002
—————————————
Dated this the 15th day of February, 2008
Judgment
Koshy,J.
First respondent in this appeal sustained injuries during
the course of employment and he claimed a compensation of
Rs.2,36,472/-. Commissioner for Workmen’s Compensation found
that the accident arose during the course of employment and he is
entitled to compensation and awarded a compensation of
Rs.1,54,703/- with interest. Only dispute is regarding the quantum
of compensation.
2. Ext.A5 wound certificate shows the following injuries:
“1. Closed fracture shaft of lower third of
right femur;
2. Compound fracture both bones right
leg upper third. Size of the wound 3 x 3 x 3 c.m.
3. Lacerated wound back of left thigh
near the kneel joint.”
Doctor assessed 30% permanent disability and loss of earning
capacity at 70%. The disability certificate reads as follows:
M.F.A.No. 1383/2002 2
“1. Partial ankylosis of right knee with
motion limited from 180o line to 45o flexion.
2. Mal-union of fracture shaft of femur in
10o angulation.
3. Shortening of femur by one inch.
4. Mal-union of fracture tibia upper third
in 10o – 15o posterior bowing.
5. Shock and mental strain.”
The tribunal examined the claimant and found that there was
shortening of legs and he can walk only with special shoes and it
will be very difficult for him to drive the vehicle. He was a driver by
profession. It is a non-schedule injury. Section 4 (1) (c) (ii) of the
Workmen’s Compensation Act provides that in the case of a non-
schedule injury, loss of earning capacity should be fixed on the
basis of the certificate of qualified medical practitioner and
Explanation II provides that medical practitioner can assess the
disability in proportion to the injuries. Here, there is not only
fracture tibia, but, he had a fracture of femur also. Loss of earning
capacity for the amputation of leg under the Workmen’s
Compensation Act is 70 to 80%. Here, there was no amputation,
but, at the same time, there are serious difficulties and physical
disability is different from earning capacity. Considering
M.F.A.No. 1383/2002 3
Explanation II, loss of earning capacity has to be assessed in
proportion to the earning capacity fixed in first schedule.
Considering these difficulties, loss of earning capacity can be only
at 50% as per the injuries mentioned in the application. Therefore,
compensation payable will be Rs.2000 x 60 x 184.17 x 50 =
100 100
Rs.1,10,502/= with statutory interest as awarded by the
commissioner from 27.9.1995 (date of accident) till its deposit, that
is, 6.9.2002. If excess amount was deposited, it should be
refunded to the insurance company and if any amount is due it
should be deposited by the insurance company. Appeal is allowed
partly. The direction of refund of Rs.25,000/- to the third
respondent insurance company made by the Commissioner is not
disturbed.
J.B.Koshy
Judge
K. Hema
Judge
vaa
M.F.A.No. 1383/2002 4
J.B. KOSHY
AND
K.HEMA ,JJ.
————————————-
M.F.A. No. 1383 of 2002
————————————-
Judgment
Dated:15th February, 2008