IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 65 of 2009()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. P.A. BINOY,
... Respondent
2. P.V. MANI,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/04/2010
O R D E R
M.N. KRISHNAN, J.
...........................................
M.F.A..No.65 OF 2009
.............................................
Dated this the 5th day of April, 2010.
J U D G M E N T
This is an appeal preferred against the order of the
Workmen’s Compensation Commissioner, Thrissur in
W.C.C.No.258/2003. The claimant, an auto driver by
profession, sustained injuries such as fracture of the right
elbow and abrasions on the right hand. The Workmen’s
Compensation Commissioner awarded him a sum of
Rs.54,515/= and directed the insurance company to pay the
interest from 13.5.2003. It is against that decision, the
insurance company has come up in appeal.
2. Though the applicant is served, he has not entered
appearance. The main point argued before me is regarding
assessment of the disability compensation. Whether fracture
of the elbow would cause 7% permanent disability which
will result in 15% loss of earning capacity is the question to
be considered. The doctor who had issued it was examined.
But, a perusal of the doctor’s disability certificate would
reveal that it is not done in accordance with the dictum laid
: 2 :
M.F.A..No.65 OF 2009
down by this Court. In order to find out the loss of earning
capacity, the matter came up for consideration before a
Full Bench of this Court in the decision reported in
Vanajakshan v. Joseph ( 2003 (2) KLT 462. In the said
decision, the Full Bench of this Court held that loss of
earning capacity is to be assessed not on the basis of a
particular work a person was doing, but it should be based
on the loss of earning capacity with respect to all the works
which one was capable of doing before the accident. It is in
that angle the matter has to be looked into. Unfortunately
the doctor who issued the disability certificate had only
considered the loss of earning capacity on the basis of the
fact that he was the driver of a goods auto rickshaw.
Therefore the matter requires reconsideration. It is
desirable that the applicant is referred to a medical board
and a certificate is obtained as per the dictum laid down in
the above said decision and thereafter permission be
granted to both sides to adduce documentary as well as oral
evidence in support of their respective contentions and then
the matter be disposed of in accordance with law.
: 3 :
M.F.A..No.65 OF 2009
3. Therefore the order under challenge is set aside and
the matter is remitted back to the Workmen’s Compensation
Commissioner for the purpose mentioned in the previous
paragraph. Let the claimant be referred to a medical board
and thereafter the parties be permitted to adduce evidence.
The Workmen’s Compensation Commissioner is directed to fix
the date of appearance and issue notice to the parties for
their appearance. The amount which is remaining in
deposit after the disbursement shall remain in deposit till a
final decision is taken in the matter.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE
cl
: 4 :
M.F.A..No.65 OF 2009