IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 240 of 2009()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. JAGADEESWARAN, S/O. PALANISAMY,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.P.V.BABY
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :12/03/2010
O R D E R
M.N.KRISHNAN,J.
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M.F.A. No.240 OF 2009
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Dated this the 12nd day of March 2010.
JUDGMENT
This is an appeal preferred against the Workmen’s
Commissioner, Thrissur in W.C.C. No. 53/2004. The claimant
therein sustained injuries in a road accident and has been
awarded compensation of Rs.51,122/- with 12% interest
from the date of application. It is against that decision the
Insurance Company has come up in appeal.
1. Challenging the employer-employee
relationship.
2. Challenging the percentage of disability and
loss of earning capacity.
3. Regarding the interest.
2. So far as the 1st point is concerned at least there
is evidence to show that he was working on that day
when the accident occurred under the owner and no other
M.F.A. No.240 OF 2009 2
evidence is available to prove that his employment was
such a casual nature. Therefore, I do not propose to
interfere with the decision rendered on the employer-
employee relationship.
3. Next question is regarding the percentage of
disability and loss of earning capacity. Time and again I
have come across the orders of this Workmen’s
Compensation Commissioner where without any application
of mind when an application for reference to the medical
board is made it is summarily dismissed. I am making this
reference for the following reasons:-
4. The injuries noted in the order are multiple
lacerated wound over the right side of the scalp, lacerated
wound in right forearm and abrasion over right scapula.
Under ordinary circumstance these injuries are incapable
of creating disability unless there are certain other
complications developed on account of the injuries
sustained. The learned counsel for the respondent
produced before me a copy of the disability certificate where
M.F.A. No.240 OF 2009 3
I find that the person had oedema. A doctor, at Thrissur
who has no occasion to treat him shows the disability after
a period of 5 years and that certificate does not show what
are the clinical examination or radiological examination
conducted by him to find out the disabilities mentioned in
his certificate. It was under those circumstances that
Insurance Company moved an application for examination
by medical board which was out rightly rejected by the
Workmen’s Compensation Commissioner. However it has
to be held that the Workmen’s Compensation Commissioner
had not followed dictum laid down by this court reported
in Vanajakshan V. Joseph, (2003 (2) KLT 462 (FB))
where the Full Bench held that while assessing disability
it is the paramount duty to find out the incapacity to do
all the work which one was capable of doing and not with
respect to a particular work which he was doing. The
Workmen’s Compensation Commissioner have not
followed the said dictum as well. Therefore, this is
eminently a fit case where the order has to be set aside,
M.F.A. No.240 OF 2009 4
and direct the Workmen’s Compensation Commissioner to
refer the claim to a medical board for proper examination
to find out the disability as well as the loss of earning
capacity if any as stipulated in the Full Bench Decision of
this Court referred to above. Since the matter is going back,
so far as interest is concerned, the Workmen’s
Compensation Commissioner may decide it in accordance
with law. I must also mention that this Court had taken the
view that in the light of National Insurance Company
Ltd V. Rekha,(2007(4) KLT 386) and also in the light of
decision of Supreme Court in Pratap Narain Singh Deo V.
Shrinivas Sabata (AIR 1976 SC 222) a decision of the
Constitution Bench interest has to be given from the date
of the accident. But here the interest is only given from
the date of filing of the petition and that is a matter which
the Court can decide in accordance with the position of law
on that relevant date. The Workmen’s Compensation
Commissioner is directed to issue notice to the parties for
fixing the date of appearance and then proceed to dispose
M.F.A. No.240 OF 2009 5
of the matter in accordance with law. Needless to state that
the disability has to be fixed with reference to the injuries
sustained in the accident.
M.N.KRISHNAN,JUDGE.
mns