IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 MFA.No. 33 of 2009() -------------------- WCC.421/2004 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------------ THE ORIENTAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT/IST OPPOSITE PARTY: ------------------------------------------------------------------------------- 1. PRADEEPKUMAR, S/O.GANGADHARAN, PARAKKAL HOUSE, CHETTICHAL P.O. CHEMBOOCHIRA, KODAKARA (VIA), THRISSUR DISTRICT. 2. K.U.BASHEER, KARAPPAM VEETIL HOUSE, MUNGHAT LANE, PUNKUNNAM, THRISSUR DISTRICT. R1 BY ADV. SRI.P.V.CHANDRA MOHAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.403/2009 IN MFA NO.33/2009 DISMISSED 9/06/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... M.F.A.NO.33 OF 2009 ............................................. Dated this the 9th day of June, 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.421/2004. The claimant alleging to be an auto driver met with an accident when it capsised and the Workmen's Compensation Commissioner has fixed the compensation at Rs.65,245/= with the liability to pay interest at 12% from the date of accident. Challenging the employer-employee relationship as well as percentage of loss of earning capacity and liability to pay interest from the date of accident, the insurance company has come up in appeal. 2. Heard the learned counsel for the appellant as well as the claimant. The first question to be considered is regarding the employer-employee relationship. The learned counsel for the appellant would contend that by conducting a private investigation and recording a statement of the claimant it has come out that he is the owner of the auto : 2 : rickshaw and that the registration certificate alone is not transferred. But the learned counsel for the claimant would contend that it has been properly answered by the claimant in cross examination. I had perused the statement as well as the cross examination. It is true that in the statement before the private investigator the claimant had stated that he is the owner of the vehicle. But he was cross examined by the counsel for the insurance company. He has said that he has not understood the contents and therefore the mistake has taken place. He reiterates that he is not the owner of the vehicle. A statement made by a party can always be explained. Now the question is whether the explanation tendered is proper or not. The registration certificate stands in the name of the first opposite party in the claim petition. He has not come forward with any contention regarding the transfer of the auto rickshaw. Except for a mere sentence in the statement, no other evidence is adduced or forthcoming to substantiate the contention of the insurance company regarding the transfer. So as things stand, the registration certificate stands in the name of the first opposite : 3 : party. The claimant denies that he is the owner of the vehicle. Against this, there is no contra evidence to hold otherwise. Therefore, I sustain the finding on the employer-employee relationship. 3. The next question is regarding the loss of earning capacity. What the claimant had sustained is a radius fracture. The Tribunal did not accept the disability certificate issued by the doctor as such and fixed it at 16%. A perusal of the disability certificate would reveal that it is not issued in accordance with the document relied down by this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462 FB). A Full Bench of this Court had made it very clear that loss of earning capacity has to be calculated on the basis of loss of earning capacity by a person with respect to the whole work which he was capable of doing and not with respect to the work which he was doing at the time of the accident. It has not been done. Therefore the Tribunal's finding regarding loss of earning capacity cannot be accepted. 4. I persuaded the learned counsel appearing for : 4 : both to have a via media and both of them did co-operate very well and therefore, decided to reduce the percentage by 5% making the loss of earning capacity at 11%. When the loss of earning capacity is fixed at 11%, the entitled compensation would be Rs.44,855/=. So, the amount is modified accordingly. 5. Lastly on the question of interest. The learned counsel would contend that the insurance company is liable to pay the interest only from the date of award. In the light of a decision of this Court in National Insurance Company Ltd. V. Rekha (2008 A..C.J. 886), the entitlement would be from the date of accident. In the said decision, the Division Bench has considered the Constitutional Bench decision of the Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). The Division Bench also considered regarding the conflicting decision of the Constitutional Bench and the Division Bench and held that the decision of the Constitutional Bench will prevail. Therefore it has to be held that the claimant will be entitled to interest from the : 5 : date of accident. It has been followed by another Bench of this Court in Harrison Malayalam Ltd. v. Ashraf (2009 (1) KLT 825) and also the Himachal Pradesh High Court in New India Assurance Company v. Budha Ram (2009 (4) TAC 614). 6. Therefore the appeal is disposed of and a revised order is passed fixing the compensation at Rs.44,855/= and the insurance company is directed to pay the said amount with simple interest at 12% from 10.10.2003 till the date of deposit. Since amount is deposited for the purpose of the appeal, the excess amount, if any, to be reimbursed to the insurance company and the amount which is entitled to be drawn by the claimant be disbursed to him. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 :