IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 MFA.No. 49 of 2009() ------------------------------ WCC.493/2002 of W.C. COMMISSIONER,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY. ------------------------- THE ORIENTAL INSURANCE CO.LTD KUNNAMKULAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT/IST OPPOSITE PARTY ----------------------- 1. FAROOK, S/O. ABDUTTY ARAKKAL HOUSE, P.O.VELLARAKKAD, ERUNNAPETTY VIA, THRISSUR DISTRICT. 2. V.V.MOIDUNNY, VETTAMPARAMBIL HOUSE P.O.KADANGODE, THRISSUR DISTRICT. R1 BY ADV. MR.C.A.CHACKO THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.F.A.NO.49 OF 2009 ............................................. Dated this the 22nd day of October, 2009 J U D G M E N T R2 refused. Held sufficient service. 2. This is an appeal preferred against the award of the Workmen's Compensation Commissioner, Trichur in WCC.No.493/2002. The claimant, a driver of an auto rickshaw, sustained injuries in a road accident and the Workmen's Compensation Commissioner has awarded him Rs.21,775/= with 12% interest from the date of the accident. Challenging that decision, the present appeal is filed. The following substantial questions of law had been framed by this Court at the time of admission. They are extracted as follows: "i. Has not the Commissioner went wrong in awarding compensation under Section 4(1)(c) especially when the claimant sustained only abrasions and contusion which at best can come udner Section 4(1)(d) W.C.Act? ii. Has not the Commissioner went wrong in rejecting the application to refer the applicant to medical board especially when the disability certificate produced and the evidence tendered thereon has no nexus to the injuries sustained in the alleged accident? : 2 : M.F.A.NO.49 OF 2009 iii, Has not the Commissioner went wrong in directing the appellant to pay the amount with interest at 12% from the date of accident (14.2.2002) especially when the claim was adjudicated only on 9.12.2008?" 3. Points 1 and 2 : It is the case of the applicant that while driving an auto rickshaw, he sustained injures which resulted in loss of earning capacity and therefore he is entitled to compensation under the provisions of the Workmen's Compensation Act. The learned counsel for the insurance company would contend on perusal of the extracted portion in the award that the injury sustained in the accident are not of any serious consequence and he has only suffered extensive abrasion on the right leg as well as contusion over the left ankle. According to the learned counsel, by any stretch of imagination it would not result in any disability and therefore the approach of the Workmen's Compensation Commissioner to fix the compensation under Section 4(1)(c) of the Act is not correct. It is also contended that the order of the Workmen's Compensation Commissioner rejecting the prayer for examination by a medical board is also not in : 3 : M.F.A.NO.49 OF 2009 accordance with law. In order to resolve these disputes, first of all it has to be ascertained what are the nature of the injuries really sustained by the claimant and whether as a result of those injuries he had suffered loss of earning capacity or only a temporary loss of earning capacity. All these things will depend upon the medical evidence to be produced in a case of this nature. Time and again this Court has cautioned that the view of the Workmen's Compensation Commissioner cannot be a substitute for the medical evidence and a Full Bench decision of this Court in Vanajakshan V. Joseph (2003 (2) KLT 462) it has been held that it is not the percentage of loss of earning capacity with respect to a particular avocation of the person but it relates to the disability with respect to the whole work which one was capable of doing. Even if there is any loss of earning capacity, the methodology is to be as held in the above decision. As far as this case is concerned, first of all it has to be ascertained whether the injuries are of such a serious nature, that has resulted in loss of earing capacity and whether the person has any disability at all. For that, : 4 : M.F.A.NO.49 OF 2009 the proper method is to refer him to a medical board for examination and after obtaining the report, permit the parties concerned to adduce evidence and then dispose of the matter in accordance with law. Needless to say that both the parties be permitted to adduce oral and documentary evidence in upport of their respective contentions and I direct the Workmen's Compensation Commissioner to refer the claimant to a medical board as well. 4. Therefore the order under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner for a proper trial and disposal. He shall issue notice to both the parties informing about the date of appearance. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 5 : M.F.A.NO.49 OF 2009 M.N.KRISHNAN, JUDGE cl : 6 : M.F.A.NO.49 OF 2009