IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 MFA.No. 46 of 2005 --------------------------------- WCC.142/1999 of W.C.C., KANNUR .................... APPELLANT(S): OPPOSITE PARTY: ------------------------------------------------ THE MANAGER, HARRISONS MALAYALAM LTD., ARAPPETTA ESTATE, P.O. MEPPADI, WAYANAD. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.K.JOHN MATHAI SMT.PRIYA KRISHNAMOORTHY RESPONDENT(S): APPLICANT: ----------------------------------------- AVARAN KUNHAVARAN, ACHIPRA HOUSE, ANCHEKRATPADI LINE, FACTORY DIVISION, HML ARAPETTA. BY ADV. SRI.KALEESWARAM RAJ THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A. NO. 46 OF 2005 --------------------------------------------------- Dated this the 6th July, 2009 JUDGMENT K.M. Joseph, J. This is an Appeal filed under Section 30 of the Workmen's Compensation Act. We heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent. 2. The respondent is the applicant in an application filed under Section 22 of the Workmen's Compensation Act seeking compensation from the appellant for personal injuries sustained by him in an accident while he was employed by the appellant/opposite party. The Commissioner has allowed the application and awarded a sum of Rs.1,12,250/= with 12 per cent interest. Learned counsel for the appellant would essentially canvass substantial question of law No. VI which reads as follows: MFA.NO.46/05 2 “VI. Whether the Commissioner is correct in passing an order for compensation relying on a medical certificate issued by a medical practitioner when the Commissioner himself initially did not incline to rely upon the same referred the workman to a medical board for obtaining disability certificate and without waiting for the same ?”. 3. The commissioner, as pointed out by the learned counsel for the appellant, taking note of the fact that on the request of the appellant to refer the respondent to the Medical Board, the respondent was referred to the Medical Board. But, only for the reason that disability certificate had not been received, the disability certificate issued by Dr. K.R. Mohanan vide Ext.A5 came to be relied on and taking the disability of the respondent as 40 per cent, his loss of earning capacity was recorded and accordingly, the compensation came to be computed. Learned counsel for the respondent would submit that actually there is nothing wrong in placing reliance on Ext.A5, as was done by the MFA.NO.46/05 3 Commissioner. 4. When the Commissioner decided to refer the matter to the Medical Board for getting an assessment done by the Board of the condition of the respondent, for the mere reason that the Medical Report is not yet received, it was certainly not open to the Commissioner to have decided the matter only on the basis of Ext.A5 Certificate. It is not on account of any fault apparently attributed to the appellant that there was any delay. The mere fact that there was delay, cannot take away the right of the appellant to bring the decision of the Commissioner himself to its logical conclusion, namely the obtaining of the Report from the Medical Board and the taking of a decision on the same in accordance with law. Therefore, we feel that the reliance placed by the Commissioner on Ext.A5 without awaiting the Report of the Medical Board, is patently unsustainable and accordingly the matter has to go back. Learned counsel for the appellant made a submission that the other questions also may be considered. We are not inclined to accept the said request, MFA.NO.46/05 4 even though the appellant has raised certain substantial questions of law hovering around the question as to whether the accident has arisen out of the employment. We are not inclined to think that the appellant has succeeded in pointing out the existence of any other substantial question of law which warrants interference and we remit it for the purpose of taking note of the Report of the Medical Board. Accordingly, the impugned order is set aside and the parties will be present before the Commissioner on 18.8.2009 and he will thereafter proceed to take a decision in the matter within a period of two months from 18.8.2009. We make it clear that the remand is only for deciding the quantum of compensation. The Appeal is allowed as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge