IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 241 of 2009()
1. THE NEW INDIA ASSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. PRASANTH E.P., S/O.PRAKASAN,
... Respondent
2. K.R.GIRIJAN, KURUPPATHU PARAMBIL HOUSE,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/11/2009
O R D E R
M.N. KRISHNAN, J.
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M.F.A. NO. 241 OF 2009
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Dated this the 23rd day of November, 2009.
J U D G M E N T
This appeal is preferred by the insurance company
against the award of the Workmen’s Compensation
Commissioner, Thrissur in W.C.C.344/03. The appeal is
admitted on the following substantial questions of law:
“(i) Whether the Commissioner is
justified in rejecting the application filed by
the appellant to assess the correct
percentage of loss of earning capacity of the
applicant, if any?
(ii) Whether the Commissioner is
justified in fixing 10% loss of earning
capacity when the Doctor has assessed only
6% disability and also without resorting to
the schedule under the W.C.Act and
(iii) Whether the Commissioner is
justified in granting 12% interest on the
compensation amount from the date of
application or from the date of accident?”
M.F.A. 241 OF 2009
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Points:
2. Heard the learned counsel for the appellant as well
as the applicant before the Compensation Commissioner. It
is the case of the applicant that while he was loading granite
stones in a lorry his leg slipped and he fell down resulting in
serious injuries such as a cut injury on the left thumb etc.
The Compensation Commissioner has fixed the loss of
earning capacity at 10%, income at Rs.3,300/-, fixed the
compensation and awarded interest at the rate of 12% from
the date of accident. All these points are challenged before
this Court.
3. I find in very many cases that the Compensation
Commissioner rejected the application when it is filed for
referring a person to a Medical Board. They do not accept
the disability given by the Doctor and ultimately they reach a
conclusion of their on to fix the loss of earnings capacity. I
am afraid that the said approach is totally erroneous in the
M.F.A. 241 OF 2009
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light of the large number of decisions rendered by this Court
and especially the latest Full Bench decision reported in
Vanajakshan v. Joseph (2003 (2) KLT 462). The
learned Judges of this court on an exhaustive consideration
of the materials held as follows.
“The compensation has to be
determined with reference to the loss
in earning capacity and not the ability
to perform the duties of the job, which
was being done by the workman at the
relevant time. The compensation has
to be assessed on the basis of the
percentage of the loss of earning
capacity. While determining the loss
of earning capacity the authority has
to keep in view the loss of capacity of
a workman “for all work which he was
capable of performing” and not for the
work which he was actually doing.”
Thereafter only after permitting the parties to adduce
M.F.A. 241 OF 2009
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evidence the compensation has to be fixed. So the loss of
earning capacity has to be arrived on the basis of the
materials which would show regarding the incapacity of the
person to do all the work which he was capable of
performing. But it is not in that angle the matter is
considered but the Compensation Commissioner jumps to a
conclusion and decides it. So it is necessarily to be
interfered with. Since the matter is going back the question
of interest can also be considered on the basis of the latest
decision available on that point at that time.
In the result the award under challenge is set aside and
the matter is remitted back to the Compensation
Commissioner with a direction to refer the person to a
Medical Board to assess the loss of earning capacity as
contemplated in the decision reported in Vanajakshan v.
Joseph (2003 (2) KLT 462 and then permit the parties to
adduce evidence in support of their respective contentions
M.F.A. 241 OF 2009
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and thereafter dispose of the matter in accordance with law
including the rate of interest as covered by the decision at
that point of time. At any rate 30% of the amount in deposit
shall be disbursed to the applicant. The Compensation
Commissioner is directed to fix a date of appearance and
inform the parties for further proceeding with the matter.
M.N. KRISHNAN, JUDGE.
ul/-