IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 MFA.No. 443 of 2002(D) ---------------------- WCC.153/1998 of W.C.C.,ERNAKULAM .................... APPELLANT/4TH OPP.PARTY. ----------------------------------- NATIONAL INSURANCE COMPANY LTD. DIVISION NO.VII, 3RD FLOOR, 104 MUMBAI SAMACHAR MARG, MUMBAI 400 0023. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/APPLICANT AND OPP.PARTIES 1 TO 3: ---------------------------------------------- 1. A.S.BALACHANDRAN, ALLATHU HOUSE, MUPPATHADAM, ALWAYE. 2. SREE SAKTHI PAPER MILL, MUPPATHADAM, ALWAYE REPRESENTED BY ITS MANAGER. 3. FURANCE FABRICA (INDIA) LTD., OPPOSITE M MILMA DAIRY, KOONAMTHAI, EDAPPALLY, COCHIN-24, REP RESENTED BY ITS MANAGER. 4. LIDIA ENGINEERING, BINANIPURAM REPRESENT ED BY ITS MANAGER. ADDL.5TH RESPONDENT: 5.SMT.E.K.UMADEVI,W/O.LATE A.S.BALACHANDRAN, AGED 43 YEARS, RESIDING AT ELAMANA ROAD, DESOM POST, ALUVA. ADDL.5TH RESPONDENT WAS IMPLEADED AS PER ORDER IN I.A.NO.246/2008 IN M.F.A.443/2002 DATED 17.1.2008. BY ADV. SRI.P.RAMAKRISHNAN FOR R1 SMT.T.C.KRISHNA FOR R1 SRI.K.JAJU BABU FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008 ALONG WITH MFA NO.1227 OF 2002 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NOS.443 & 1227 OF 2002 () ----------------------------------- Dated this the 17th day of January, 2008 J U D G M E N T KOSHY,J. A workman employed for welding work of a tank in the premises of the 1st opposite party by the 2nd opposite party suffered injuries during the course of employment. He filed an application for compensation claiming an amount of Rs.2,21,004/-. Commissioner awarded only Rs.43,529/- with interest and directed the insurance company 4th opposite party (appellant) to deposit the same. Both claimant and insurance company filed these appeals. 2. Qualified medical practitioner certified that there is 20% physical disability but loss of earning capacity is 42%. The Commissioner considered the medical certificates issued by the Medical practitioner but found that there is no case for granting compensation for 42% loss of earning capacity as injuries were minor and after effects of the same may not affect much on his earning capacity. Under Explanation II to Section M.F.A.443 & 1227/2002 2 4 (1) (ii), medical practitioner has to assess the loss of earning capacity in proportion to the same for the injuries mentioned in Schedule I and Commissioner arbitrarily assessed the compensation. But considering the disability assessed by the doctor, compensation for 20% loss of earning capacity was awarded. On behalf of the claimants, it was argued that Commissioner ought have awarded compensation for 40% loss of earning capacity. Considering the nature of injuries, Ext.A1 certificate and the totality of evidence and considering the fact that Commissioner has personally seen the workman and assessed loss of earning capacity, we are of the opinion that 20% loss of earning capacity assessed is perfectly correct and needs no interference. Compensation amount was calculated correctly. Hence appeals filed by the claimant and insurance company on the question of quantum of compensation are liable to be dismissed. 3. Insurance company has got another contention that only the employees of the 2nd respondent were covered under the workmen policy issued by it. But here he was employed M.F.A.443 & 1227/2002 3 by a contractor and contract employees are not covered. However, the evidence shows that alleged contractor was only a supplier of labourers. 2nd opposite party has taken the contract for installation of pollution control device in the premises of the 1st opposite party and in the course of the work of the 2nd opposite party, accident occurred. Commissioner rightly found that claimant was a workman employed by the 2nd opposite party and he was covered by the insurance policy taken by it covering all its employees. Insurance company itself has granted an amount of Rs.1,467/- even before workman approached the Commissioner, as disability was mentioned. That shows that liability is admitted by the Insurance company. In the above circumstances, the contention of the Insurance company that Insurance company is not liable to pay the amount cannot be accepted. But under the policy of insurance, it is not liable to pay interest and it is payable by the employer and liability to pay interest is specially exempted. Therefore, the compensation awarded should be deposited by the Insurance company and the interest portion has to be deposited by the 2nd opposite party. He was M.F.A.443 & 1227/2002 4 employed by the 2nd opposite party. Therefore, responsibility to pay interest is on the 2nd respondent. There is no need to pay interest on interest. Amount of compensation was deposited by the insurance company on 5.12.2001. Therefore liability of the 2nd opposite party, employer is to pay the statutory interest of 12% per annum on the principal amount of Rs.43,529/- from the date of accident till the date of deposit. Award is modified accordingly. Insurance company has deposited the entire principal amount. It is also submitted that during the pendency of the appeal, claimant committed suicide and his wife was impleaded as the legal representative. The entire amount of compensation deposited by the Insurance company can be withdrawn by the wife. With the above observations both appeals are disposed of. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NOS.443 & 1227 OF 2002 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 17th January, 2008