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 fromM. 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
JUDGEK.P.BALACHANDRAN,
JUDGE
kns/-
