IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 MFA.No. 172 of 2008() --------------------- WCC.400/2002 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY: -------------------------------------- NATIONAL INSURANCE CO.LTD., GURUVAYUR, REP. BY THE MANAGTER, KOCHI REGIONAL OFFICE, M.G. ROAD. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/APPLICANT & 1ST O.P.: ------------------------------------------ 1. SHOKKATHALY C.P., S/O. MOIDEEN, CHINIKKAPARAMBIL HOUSE, MUTHUR P.O., VATTAMKULAM VIA, MALAPPURAM. 2. P.SAKKENA, W/O. MAYAMMUNNI, PERICHERY HOUSE, THALAKKASSERY P.O., THRITHALA,PALAKKAD. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA No. 172/08 ORDER ON IA No. 2976/08 IN MFA No.172/08 DISMISSED 13.11.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N. KRISHNAN, J ----------------------- M.F.A.No. 172 OF 2008 --------------------------------- Dated this the 13th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Workmen's Compensation Commissioner, Trichur in W.C.C No. 400/2002. The Claimant while employed as a driver of an Autorickshaw sustained injuries in a road accident. He moved an application for compensation under the Workmen Compensation Act. The Workmen Commissioner fixed his income at Rs. 3,300/-, disability at 12% and applying an appropriate index and arrive at a compensation of Rs. 53,222/- with a direction to pay interest from the date of accident. It is against that decision the Insurance Company has come up in appeal. 2. The accident had taken place in the year 2002 and the Workmen Compensation fixed the amount at Rs. 3,300/- as income for an auto driver. Especially taking into consideration the prevailing circumstances one can find that it is not on the higher side and it is a question of fact which is decided after consideration of the materials. 3. The next question is regarding disability. A document has M.F.A.No. 172 OF 2008 -2- been produced whereby permanent disability is shown as 9% and loss of earning capacity at 15%. Commissioner has only taken 12% loss of earning capacity and had calculated the compensation. Under the provisions of the Workmen Compensation Act, the proper authority to fix loss of earning capacity is a medical expert. In spite of the same, the Compensation Commissioner has reduced percentage and therefore it cannot be also said to be on the higher side. 4. Lastly the question is regarding interest. The learned counsel for the appellant relies upon a later decision of the Supreme Court reported in National Insurance Co. Ltd. vs. Mubasir Ahmed and another (2007 AIR SCW 1265) It is laid down in that decision that one can get interest only from the date of the award. A Division Bench of this Court in the decision reported in National Insurance Co. Ltd. v. Rekha [2007 (4) KLT 386] had considered this question. The Division Bench had referred to a larger Bench decision of the Apex Court which is reported in Pratap Narain Singh Deo v. Shrinivas Sababa & another [AIR 1976 SC 222] and further held that when there is a conflict between decision of Supreme Court, the decision of larger Bench will prevail. M.F.A.No. 172 OF 2008 -3- According to the decision of the larger Bench, the entitlement of interest is from the date of accident and not later. Therefore on that point also the matter is specifically covered by the decision referred to above. From this discussion I hold that there is no substantial question of law much less any question of law involved in this appeal. Therefore the appeal lacks merit and dismissed. M.N. KRISHNAN, JUDGE vkm