IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 MFA.No. 183 of 2009() -------------------------------- WCC.18/2004 of COMMISSIONER WORKMENS'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER) THRISSUR. .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- THE ORIENTAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SMT.LATHA SUSAN CHERIAN SRI.ALEXY AUGUSTINE SMT.K.S.SANTHI RESPONDENT(S): APPLICANT ------------------------ 1. JAYA PRAKASH, S/O.VELAYUDHAN, EDATHARA HOUSE, P.O.AYYAPPANKAVU, MULAYAM, THRISSUR. *2. MURALEEDHARAN, PUTHUPURA HOUSE, ERAVIMANGALAM P.O., THRISSUR. (DELETED) * R2 IS DELETED AS PER ORDER 31.5.2010 IN C.M.A. NO.2018/2010. R1 BY ADV. SRI.V.BINOY RAM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.2025/2009 IN M.F.A. NO.183/2009 DISMISSED 31.05.2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 183 OF 2009 = = = = = = = = = = = = = = = Dated this the 31st 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. 18/04. The claimant sustained injuries in a road accident and the Compensation Commissioner has awarded him a compensation of Rs.93,319/- and directed the insurance company to pay 12% interest from the date of accident. Challenging the quantum as well as the interest the insurance company has come up in appeal. 2. Heard the learned counsel for the appellant as well as the claimant. I am afraid that the Compensation Commissioner has not approached the matter correctly as laid down by this Court in 2003 (2) KLT 462. In the said decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) the Full Bench of this Court had given the guidelines to be followed in assessing the disability. The Full M.F.A.. 183 OF 2009 -:2:- Bench held that in order to arrive at the percentage of loss of earning capacity the working capacity of the person injured should relate to the entire work which he was capable of performing and not the work which he was doing at the time of the accident. So loss of earning capacity has to be assessed in that fashion. Then the Full Bench held that evidence can be let in, thereafter to decide the matter precisely. 3. So far as this case is concerned the doctor assessed the loss of earning capacity at 35% as a driver and the Compensation Commissioner in her own imagination reduced it to 20% and fixed the compensation. The method adopted is wrong and therefore the matter has to go back. 4. So far as the interest is concerned in the light of the decision reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 and the other decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222) the insurance company is liable to pay 12% interest from the date of accident. M.F.A.. 183 OF 2009 -:3:- 5. Therefore the award under challenge is set aside and the matter is remitted back to the Compensation Commissioner with a direction to refer the claimant to a Medical Board with a direction to assess the loss of earning capacity as held in Vanajakshan v. Joseph (2003 (2) KLT 462(FB), thereafter the parties be permitted to adduce evidence and the matter be disposed of in accordance with law. Since the owner is reported dead, the claimant on appearance before the Compensation Commissioner shall take steps to implead the legal representatives of the owner. The Commissioner is directed to issue notice to the parties, i.e. the applicant and the insurance company for fixing the date of appearance. If any amount is in deposit let it remain in the deposit until a final decision is taken in the matter. M.N. KRISHNAN, JUDGE. ul/-