IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 196 of 2002()
1. THE NEW INDIA ASSURANCE CO.LTD.,
... Petitioner
Vs
1. K.P.DASAN S/O.KUTTYPANGAN,
... Respondent
2. K.A.MOINUDHEEN,KULANGARATH ALUVAKAYIL,
For Petitioner :SRI.THOMAS MATHEW NELLIMOOTTIL
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :22/05/2008
O R D E R
M.N.KRISHNAN, J.
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M.F.A. No. 196 OF 2002
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Dated this the 22nd day of May, 2008
JUDGMENT
This appeal is preferred against the award of the
Workmen’s Compensation Commissioner, Thrissur, in W.C.C
No.145/98. The applicant sustained injuries in a road accident. He
was a driver by profession and has sustained fracture and the
Workmen’s Compensation Commissioner assessed the
compensation at Rs.62,976/-. It is against that decision the present
appeal is preferred.
2. The learned counsel for the Insurance company would
contend that there is no evidence to prove that he was the employee
under the first respondent in that petition. It was while driving the
vehicle he was injured and the first respondent in the application had
remained ex-parte and further the claimant has deposed before the
court that he was the employee under the first respondent. There is
no contra evidence and therefore the Workmen’s Compensation
Commissioner correctly arrived at the finding that he was an
employee of first respondent and had sustained injury during the
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course of employment.
3. The next question that arises for consideration is the
compensation. It can be seen from the award that the Workmen’s
Compensation Commissioner relied upon the certificate issued by
the Doctor which would show that there was a retraction and
reduction in the length of right big toe, stiffness of 1st
metatarsophalageal joint of right foot and restriction in dorsiflexion of
right foot. Doctor assessed the permanent disability at 7% and loss
of earning capacity at 25%. The Workmen’s Compensation
Commissioner accepted the disability at 25% and calculated the
compensation. It is fairly settled position that when loss of earning
capacity is calculated it must be with respect to the working capacity
of the person and not attributable to one point alone. So it was not
correct to accept 25% disability as such to award compensation.
4. After hearing the learned counsel for both sides, I feel it
is only just and reasonable to fix the percentage at 18% to calculate
compensation. The minimum of Rs.2,000/- of income can be taken.
He was aged 29 years. The index applied is 209.92. If the
compensation is calculated at the rate of 18% disability, it would
come to Rs.45,342.72/- which I round to Rs.45,350/-. The simple
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interest granted by the Commissioner is sustained.
The MFA is partly allowed and the compensation is
reduced to Rs.45,350/- with 12% interest per annum from the date of
filing of the application. The order of payment shall be as detailed in
the order of the court below.
M.N.KRISHNAN, JUDGE
vps
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