National Insurance Company Ltd vs Ravi on 24 September, 2008

Kerala High Court
National Insurance Company Ltd vs Ravi on 24 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 209 of 2006()


1. NATIONAL INSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. RAVI, S/O. KUTTAPPAN,
                       ...       Respondent

2. JOHNSON VARGHESE,

                For Petitioner  :SRI.RAJAN P.KALIYATH

                For Respondent  :SRI.P.V.BABY

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :24/09/2008

 O R D E R
                           J. B. KOSHY &
                 K. P. BALACHANDRAN, JJ.
                ------------------------------------------------
                    M. F. A [WCC] No.209 of 2006
                ------------------------------------------------
              Dated this the 24th day of September, 2008

                              JUDGMENT

Koshy, J

The first respondent in this appeal

sustained serious injuries in a motor accident

during the course of employment. He was a

Tanker lorry driver and while driving the

Tanker lorry the accident occurred. He

sustained serious injuries and he claimed

compensation before the Commissioner of

Workmen’s Compensation. Ext.A11 is the

disability certificate produced by him wherein

the loss of earning capacity is assessed at

40%. The above certificate reads as follows:-

“1. Persistent post traumatic head ache.

2. Anosmia.

3. Vertigo.

4. Diplopia.

5. Partial ankylosis of left hip flexion and extension
motion limited to an arc from 900 flexion to 1800
line abduction and adduction limited to an arc from

M. F. A [WCC] No.209 of 2006 -2-

250 abduction to 150 adduction, rotation motion
limited to an arc from 150 internal rotation to 250
external rotation.

Functionally he is having difficulty (a) to squatt
property (b) to climb up and getting down steps (c)
for correct vision (d) to differentiate smell (d) to
concentrate.”

2. Another certificate was issued by

another specialised Doctor vide Ext.A12

wherein the Doctor certified that first

respondent is unable to work as a driver. It

reads as follows:-

“Traumatic diplopia following RTA,
extraocular muscle paresis, a vision of 6/6 partial, right
eye and 6/6 left eye and now his corrected vision is 6/6
partial in right eye and 6/6 in left eye and watering and
irritation. Because of diplopia he will see objects in
double and cannot work as driver.”

3. Questioning these medical certificates

appellant/Insurance Company filed application

to refer the first respondent to a competent

Medical Board. Accordingly, the Medical Board

constituted by the Government Medical College

Hospital examined the first respondent and

M. F. A [WCC] No.209 of 2006 -3-

certified that there is 60% loss of earning

capacity. He has completed 42 years as per the

school certificate. Therefore, compensation

was calculated on the basis of the formula

mentioned in the Workmen’s Compensation Act

taking Rs.3,900/- as the monthly income.

4. This appeal is filed by the Insurance

Company on two grounds. First ground is that

the loss of earning capacity fixed is on the

higher side whereas the contention of the

claimant is that Doctors certified that in

view of the injury sustained he cannot work as

a driver and as far as he is concerned, his

loss of earning capacity is 100%. It is

further submitted that he was 42 years of age

at the time of accident and it will be

difficult for him to get any other job at this

point of time. Therefore, he should have been

granted 100% loss of earning capacity. But he

M. F. A [WCC] No.209 of 2006 -4-

did not file any appeal due to financial

constraints. The appellant/Insurance Company

filed application for assessing the loss of

earning capacity by a competent Medical Board

constituted by the Government Medical College,

Hospital, Thrissur and at the request of the

appellant, he was referred and the Medical

Board consisting of specialised Doctors of the

Government Medical College Hospital, Thrissur

forwarded the certificate assessing loss of

earning capacity to this Court. They certified

60% loss of earning capacity.

5. Under Section 4(1)(c)(ii) of the

Workmen’s Compensation Act, in the case of

nonscheduled injuries, the Commissioner is

bound to assess the loss of earning capacity

as certified by a competent Medical

Practitioner. Here, the Medical Board

certified 60% loss of earning capacity. In any

M. F. A [WCC] No.209 of 2006 -5-

event, awarding of compensation for 60% loss

of earning capacity based on Medical Board’s

assessment accepted by the Commissioner cannot

be set aside in an appeal proceedings.

6. It is contended that Rs.3,900/- fixed

as monthly income is on the higher side.

Injured was a Tanker lorry driver. He had a

heavy driving licence. It is his case that in

2001 a Tanker lorry driver would get more than

Rs.4,000/- per month, but at the time of

accident, maximum wages that can be calculated

for the purpose of compensation was only

Rs.4,000/-. Therefore, he claimed compensation

on the basis of monthly wages of Rs.4,000/-.

In fact, the Commissioner ought to have fixed

Rs.4,000/- as the monthly income. In any

event, it cannot be stated that Rs.3,900/-

fixed as monthly income for a Tanker

Lorry driver in 2001 is excessive. In

M. F. A [WCC] No.209 of 2006 -6-

these circumstances, we see no ground in the

appeal. There is no substantial question of

law involved so as to maintain an appeal under

Section 30 of the Workmen’s Compensation Act.

Appeal fails and is dismissed accordingly.

J. B. KOSHY
JUDGE

K.P.BALACHANDRAN,
JUDGE
kns/-

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