IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 13 of 2005()
1. P.V.PONNAN, S/O.P.J.VINCENT,
... Petitioner
Vs
1. THE REGIONAL DIRECTOR,
... Respondent
For Petitioner :SRI.JOHN BRITTO
For Respondent :SRI.T.V.AJAYAKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/07/2008
O R D E R
M.N.KRISHNAN, J.
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Ins. Appeal No. 13 OF 2005
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Dated this the 1st day of July, 2008
JUDGMENT
This appeal is preferred against the order of the Employees
Insurance Court, Alappuzha, in I.C.A. No.17/2003 . The said case
was disposed of after an order of remand of this court. In the
remand order this court held that “the order of the E.I. court in ICA
3/96 is set aside and the matter is remanded to the E.I. court for
fresh consideration in accordance with law and in the light of the
decision of the Full Bench in Vanajakshan and Others v.
M.D.Joseph and Another. The E.I. court shall refer the injured
Sri.P.V.Ponnan before the Medical Board for examination and
assessment of his earning capacity and on the basis of the above
report, an order shall be passed afresh as expeditiously as possible.”
2. The E.I. court on remand referred the person to the Medical
Board. The Medical Board certified his loss of earning capacity as
30%. It just recorded that factor and held that the appellant is
entitled for 30% permanent disablement benefit.
3. Learned counsel for the appellant would contend that such
an approach by the Insurance Court is erroneous especially when
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there has been a clear cut direction to consider the matter in the light
of the Full Bench decision reported in Vanajakshan and Others v.
M.D.Joseph and Another [2003 (2) ILR (Kerala) 515]. In the
operative portion of the judgment at para 2 the Full Bench held that
“the compensation has to be assessed with reference to the loss in
earning capacity and not on the basis of the ability to perform the
duties of the particular job, which was being performed by the
workman. If, in a given case, a workman is able to prove that he
was incapable of doing any other job, the competent authority shall
consider and decide the matter in the light of the evidence as
adduced by the parties.”
4. Just because there is an observation in the operative portion
of the remand order that the medical report has to be received and
an order has to be passed, this court never meant that the dictum
laid down in the above decision need not be followed. It is very clear
from the upper portion of the order of remand where the court has
specifically directed to consider the question in the light of the above
decision. Therefore the court should have granted an opportunity for
the appellant herein to adduce evidence in support of his contentions
raised in the appeal mentioned before the court and must have also
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permitted the other side to adduce rebuttal evidence in case of
necessity.
Therefore, the order under challenge is set aside and the
matter is remitted back to the court below with a direction to consider
the matter afresh in the light of the above discussions. The
Insurance Court shall issue notice of hearing to the parties.
M.N.KRISHNAN, JUDGE
vps
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