IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1245 of 2002()
1. V.PRABHAKARAN, S/O. VELAYUDHAN,
... Petitioner
Vs
1. P.UTHAMAN, KOLLERI HOUSE,
... Respondent
2. M/S. THE NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.THOMAS ANTONY
For Respondent :SRI.RAJAN P.KALIYATH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/05/2008
O R D E R
M.N.Krishnan,J.
-------------------------------------------------
M.F.A.Nos.1245 of 2002-E & 304 of 2003-B
-------------------------------------------------
Dated, this the 30th day of May, 2008
JUDGMENT
These appeals are preferred against the award in W.C.Case
No.118 of 1997 of the Workmen’s Compensation Commissioner,
Kozhikode. M.F.A.No.1245 of 2002 is preferred by the claimant and
the other by the Insurance Company. The Workmen’s Compensation
Commissioner fixed the loss of earning capacity at 20%, took the
income as Rs.2,000/-, applied the appropriate index and calculated the
compensation at Rs.44,856/-.
2. The learned counsel for the claimant would submit that the
claimant’s loss of earning capacity as a driver is 100% and, therefore,
compensation has to be calculated on that basis. On the other hand,
the learned counsel for the Insurance Company would contend that the
person was referred to a Medical Board, where his permanent disability
was assessed at 12% and the Commissioner should have taken into
consideration the same.
3. One thing is clear from the materials available that the
person had sustained disability on account of the injuries sustained in
the accident. The learned counsel for the claimant would submit that
since there is evidence to show loss of 100% capacity as a
MFA.Nos.1245/02 & 304/03
– 2 –
driver, the Commissioner should have accepted the same and pass
appropriate orders. The learned counsel for the Insurance Company
cited before me the decision of the Full Bench in Vanajakshan v.
Joseph [2003 (2) KLT 462], wherein it was held as follows:
“A perusal of the Cl(1) of S.2 shows that the disablement
has to be considered in the context of the injury
incapacitating the workman “for all work” and not for the
work for which he was actually employed. The reference is
to the work, which the workman “was capable of
performing at the time of accident” and not to that which
he was actually doing. In other words, the disablement has
to be determined with reference to the loss of ability to do
any work, which the employee was capable of doing. The
compensation is for loss of wages or the earning capacity
and not for the physical suffering of pain or the expense on
treatment, etc. A cumulative consideration of the
provisions contained in Ss.2, 3 and 4 clearly shows that the
intention of the Legislature was to compensate the
workman for loss of earning capacity and not for the failure
to perform the duties of the particular post on which he
was actually working. 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
MFA.Nos.1245/02 & 304/03
– 3 –
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. The competent authority
has to award compensation on the basis of evidence
adduced by the parties during the proceedings. The
compensation has to be assessed with reference to the loss
in earning capacity and not on the basis of the ability to
perform the duties of the particular job, which was being
performed by the workman. If, in a given case a workman
is able to prove that he was incapable of doing any other
job, the competent authority shall consider and decide the
matter in the light of the evidence adduced by the parties”.
So, a reading of the said paragraph would reveal that it is not the
disability with respect to the work which he was doing alone need be
taken into consideration, but the entire working capacity has to be
calculated and percentage of loss of earning capacity has to be arrived
at. Unfortunately, the Board has not fixed the working capacity of the
claimant, whereas, the Doctor who has examined him, given his
professional disability as 20%. Though one doctor had deposed that
there is 100% disability towards the job of the driver, with the
MFA.Nos.1245/02 & 304/03
– 4 –
documents which are available before the Commissioner, one cannot
hold that it is acceptable. Further the nature of the injuries sustained
by the claimant shows that there is no serious injuries so as to cause
100% disability. It is to be remembered that Exhibit A4, a disability
certificate, is produced by the claimant himself to support his case,
which shows only 20% disability. Therefore, he cannot be permitted to
blow hot and cold. So, taking into consideration this situation, the
Commissioner made an evaluation of the evidence and fixed the loss of
earning capacity at 20% and awarded the compensation. I feel, it is
only just and reasonable. Therefore,I find that both the appeals lack
merits and, therefore, dismissed without costs.
M.N.Krishnan
Judge
vku/-