IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 MFA.No. 22 of 2009() -------------------- WCC.129/2005 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------------- THE NATIONAL INSURANCE CO.LTD. THRISSUR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT:1ST OPPOSITE PARTY: -------------------------------------------------------------------------------- 1. SACHIN DATTANA, S/O.RAJESH DATTANA, AHSRAYA, JIMS COMPOUND, POST KODAVOOR, UDUPPI DISTRICT, KARNATAKA STATE. 2. YASHAWI MALPE, FEDERATION BUILDING BANDER, POST MALPE, UDUPPI DISTRICT,KARNATAKA -576118. R1 BY ADV. SRI.M.B.PRAJITH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON i.A.NO.286/2009 IN MFA NO.22/2009 DISMISSED 20/05/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 22 OF 2009 = = = = = = = = = = = = = = = Dated this the 20th day of May, 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. 129/05. The applicant before Court sustained injuries in a road accident while he was the employee of the first respondent in the petition. The Compensation Commissioner awarded him a compensation of Rs.78,390/- with 12% interest from the date of accident. It is against that decision the insurance company has come up in appeal. 2. Heard the counsel for both the sides. The points canvassed before me are (1) Whether the Compensation Commissioner was proper in fixing the loss of earning capacity at 18% and (2) Whether the claimant is entitled to interest at the rate of 12% from the date of accident or from the date of award only? M.F.A.. 22 OF 2009 -:2:- Point No.1: 3. Admittedly the applicant is an employee under the first respondent. He had sustained injuries. A perusal of the order would reveal that he had a fracture on the ankle bone. There was an avulsion fracture on the right talus and he had other superficial injuries as well. The Doctor issued a disability certificate fixing the permanent disability at 13% and whole body disability at 9.71%. The Doctor has found that the applicant is having functional difficulty in squatting properly, to climb up, for brisk walking, to stand on the toes for a long time, to hold and carry objects and to raise objects above head with right upper limb. It is true that the methodology adopted by the Compensation Commissioner is not proper. It has been stated by the Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462) that in order to to calculate the loss of earning capacity with respect to an employee the factum to be considered is what all work he is capable of doing and in order to find out that one has to hold that what all work he is M.F.A.. 22 OF 2009 -:3:- able to do and it should not be merely on the basis of a particular work which he was doing. The matter has not been analyzed in that angle but I find from the order that the claimant is a person residing in Karnataka and again summoning him and sending to a Medical Board and then decide the matter would cause inconvenience for all. Since the materials are available and there is a disability certificate of 13% granted by the Doctor I fix the disability at 13% for loss of earning capacity to decide the compensation. The Compensation Commissioner had assessed the income at Rs.3,300/- and therefore the entitlement of compensation would be 3,330 x 60/100 x 219.95 x 13/100 which will come to Rs.56,615.13. So in stead of Rs.78,390/- the claimant will be entitled to get Rs.56,615/- which I round as Rs.56,600/-. 4. So far as the interest is concerned the learned counsel would contend that interest need be awarded only from the date of award. She had relied upon some decision of the Apex Court. The Division Bench of this Court has M.F.A.. 22 OF 2009 -:4:- considered this question in National Insurance Company Ltd. v. Rekha 2008 ACJ 886. It was held therein that in the case reported in Pratap Narain Singh v. Shrinivas Sabata (AIR 1976 SC 222) Constitution of Bench of the Supreme Court has held that the entitlement is from the date of accident. The Division Bench also considered when there is a Constitution Bench decision of the Supreme Court and a later Division Bench ruling to the contra the Constitution Bench decision has to be followed and therefore applying all these principles held that the entitlement would be at the rate of 12% interest. So that does not call for any interference. In the result MFA is partly allowed and a revised order is passed whereby an award is passed in favour of the claimant for a sum of Rs.56,600/- with 12% interest on the said sum from the date of accident namely 25.5.05 till the date of deposit and the insurance company is directed to deposit the said amount. If the amount is already deposited the claimant is entitled to withdraw the amount and if excess M.F.A.. 22 OF 2009 -:5:- amount is deposited the balance will be reimbursed to the insurance company. M.N. KRISHNAN, JUDGE. ul/-