IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 MFA.No. 1218 of 2002() ---------------------- WCC.71/1997 of W.C.C.,ERNAKULAM .................... APPELLANT: 2ND OPPOSITE PARTY ----------------------------- THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, PATTAMANA BUILDINGS, RAILWAY STATION ROAD, ALUVA, REPRESENTED BY THE DEPUTY MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-682 018. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS/APPLICANTS 2 TO 5 AND 1ST OPPOSITE PARTY: ----------------------------------------------------- 1. ASENA, W/O. LATE NAZAR M.A., MAROTTICKAL HOUSE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT. 2. M.S.ABU, S/O. SULAIMAN, MAROTTICKAL HOUSE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT. 3. P.M.THACHI W/O. M.S.ABU, MAROTTICKAL HOUSE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT. 4. M.A.SHYLA D/O.M.S.ABU, MAROTTICKAL HOUSE PACHAMTHOTTAM P.O., ERNAKULAM DISTRICT. 5. K.C.POULOSE, KEERAMKUZHIYIL HOUSE, PAZHAMTHOTTAM P.O. R1 TO R4 BY ADV. SRI.T.H.ABDUL AZEEZ R1 TO R4 BY ADV. SRI.K.P.EBRAHIM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.7422/2002 IN M.F.A.NO.1218/2002 (E) DISMISSED. 28.3.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.1218 OF 2007 (E) ----------------------------------- Dated this the 28th day of March, 2008 J U D G M E N T KOSHY,J. The husband of the 1st respondent sustained serious injuries in a motor accident while he was driving a tourist taxi. He was taken to the Medical Trust Hospital. The accident arose during the course of the employment. He filed an application for compensation contending that his monthly income was Rs.3,000/- and he claimed for compensation of Rs.20,000/-. As a result of the accident, he suffered injuries in the face and head. He lost two teeth. As per Ext.A6 disability certificate, petitioner had 15% physical disability and 35% loss of earning capacity. Ext.A7 certificate was issued by another doctor. Ext.A8 is the certificate issued from the Medical Trust Hospital, Ernakulam and Ext.A9 is the certificate issued by Dr.P.R.Anil kumar, Medical Trust Hospital. After six years of the accident, he died. After the death of the appellant, his wife, father, mother and sister were impleaded as legal representatives. MFA.1218/02 2 The contention of the claimants is that after the accident, he had continuous head ache and vomiting. But the Commissioner did not award compensation for death. But relied on the medical certificate wherein loss of earning capacity was assessed as 35%, even though he was a driver and earning Rs.3,000/- per month, only Rs.2,000/- was taken as the monthly income for calculating compensation taking the statutory restrictions existing at the time of accident. According to the Insurance company, 35% loss of earning capacity is on the high side. According to the appellant, considering the injuries, compensation for more than 15% ought not have been awarded. According to the claimants, he was unable to do the work after the accident. He had vomiting and problems due to head injury. There was 100% disability and in any event, his untimely death at the young age, within six years of the accident, has got a direct relation to the accident. He had no children. According to the claimants, he was unable to do a normal life after the accident. Under Section 4 (1) (c) (ii) Explanation II, for non schedule injuries, Commissioner has to assess compensation taking into account loss of earning capacity assessed by the qualified Medical MFA.1218/02 3 Practitioner. It is true that in Explanation II, loss of earning capacity is to be assessed considering the loss of earning capacity mentioned in the schedule but head injuries are not mentioned in the schedule. Commissioner assessed the loss of earning capacity based on the certificate issued by the Medical Practitioner and awarded compensation. Calculation of compensation was done as per the provisions of the Act. Considering the facts of the case, after effects of injury and medical certificate, we are of the opinion that 35% loss of earning capacity assessed by the Commissioner needs no interference, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.1218 OF 2002 (E) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 28th March, 2008