IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1122 of 2001(C)
1. THE ORIENTAL INSURANCE CO. LTD.
... Petitioner
Vs
1. RATHNAKARA
... Respondent
For Petitioner :SRI.M.JACOB MURICKAN
For Respondent :SRI.A.P.CHANDRASEKHARAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :24/10/2007
O R D E R
J.B. KOSHY & K.HEMA, JJ.
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M.F.A.No. 1122 of 2001
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Dated this the 24th day of October, 2007
Judgment
Koshy,J.
First respondent in this case sustained
personal injuries in the course of employment. He filed
an application for compensation. He was employed as a
conductor-cum-cleaner in a bus. He claimed that his
monthly income was Rs.2,500/- per month. The bus was
insured by the appellant insurance company. He claimed
Rs.2,00,000/- as compensation. Commissioner for
Workmen’s Compensation awarded Rs.1,06,257.60 with 12%
interest from the date of accident. He deposed that he
was working as a conductor as well as cleaner. He was
issuing tickets. As a result of the accident, there was
fracture to the left hand. Ext.A2 is the wound
certificate issued by RW1. It is stated in the above
certificate that there is restriction of movement of
right hand by 25%. He deposed before the court as
follows:
M.F.A.No.1122/2001 2
“I have certified that the fracture
united, clinical examination and Alimco
manual I have depended for the assessment
of disability. Even though the fracture
is united there is same disability. It
is comminuted fracture. There is a
restriction of 25 degree. Restriction of
movement is mentioned in the certificate
which is stiffness. I have mentioned only
the degree of restriction in Ext.A3
certificate. I have not mentioned the
percentage of disability in the
certificate. I can suggest the
disability before the court. He has
disability. I have not mentioned the
disability on the whole body basis.”
In cross-examination, he stated that disability of the
whole body is 20%. He further stated that because of the
injuries in his left hand, occupational disability is
100%. Commissioner assessed compensation at 40%. There
is no evidence to the effect that he lost employment due
to the accident. The injury was only a fracture to left
hand which was well united also. Even though
Commissioner is bound to assess the compensation on the
basis of the loss of earning capacity assessed by the
medical practitioner, in Ext.A2 wound certificate or in
Ext.A3 disability certificate, loss of earning capacity
was not mentioned. The medical officer cannot also
assess the loss of earning capacity arbitrarily.
M.F.A.No.1122/2001 3
Section 4 (1) (c) (ii) and Explanation II of the
Workmen’s Compensation Act reads as follows:
“(ii) in the case of an injury not
specified in Schedule I, such percentage
of the compensation payable in the case
of permanent total disablement as is
proportionate to the loss of earning
capacity (as assessed by the qualified
medical practitioner) permanently caused
by the injury;”
xx xx xx xx xx
Explanation II – In assessing the
loss of earning capacity for the purpose
of sub-clause (ii), the qualified medical
practitioner shall have due regard to the
percentages of loss of earning capacity
in relation to different injuries
specified in Schedule I;”
Therefore, the medical officer has to assess the loss of
earning capacity considering the compensation provided
for injuries under Schedule I of the Workmen’s
Compensation Act, 1923. From the injuries noted in the
wound certificate, there cannot be even 25% loss of
earning capacity. Ext.A3 disability certificate shows
that there is 25% restriction in the movement of the
hand. In any event, no compensation can be awarded for
more than 25% disability. The Commissioner or the
medical practitioner cannot assess the earning capacity
arbitrarily without reference to Schedule I which
M.F.A.No.1122/2001 4
specifies the loss of earning capacity with respect to
schedule injuries while fixing the loss of earning
capacity due to non-schedule injuries. Therefore, in
this case, at the maximum, compensation for 25%
disability can be granted. At the time of accident,
maximum amount that can be fixed as per the provisions of
the Act as monthly income was Rs.2,000/-. Therefore,
compensation payable will be Rs.2000 x 60 x 25 x 221.37
100 100
= Rs.66,411/-. The above amount will carry 12% interest
from the date of accident (date when compensation fell
due as decided by the Supreme Court in Pratap Narain
Singh Deo v. Shrinivasa Sabata and another (AIR 1976 SC
222) and K.S.E.B. v. Valsala ((1999) 8 SCC 254) till the
date of deposit. In this case, the amount was deposited
on 31.7.2001 as a condition precedent in filing the
appeal. Hence, interest is payable on the above amount
from 23.10.1995 to 31.7.2001. Already an amount of
Rs.25,000/- was allowed to be disbursed to the claimant.
Balance amount due to him shall be disbursed by the
Commissioner to the first respondent claimant forthwith
M.F.A.No.1122/2001 5
and excess amount deposited shall be refunded to the
appellant insurance company.
Appeal allowed partly.
J.B.KOSHY
JUDGE
K. HEMA
JUDGE
vaa
M.F.A.No.1122/2001 6
J.B. KOSHY AND
K.HEMA,JJ.
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M.F.A.NO. 1122 OF 2001
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Judgment
Dated:24th October, 2007