IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 MFA.No. (W.C.C.)144 of 2007() --------------------- WC.146/2000 of W.C.C.,KOZHIKODE .................... APPELLANT: APPLICANT: ---------------------------------------- SURESH BABU, S/O. LAKSHMI AMMA, NEELI VEETTIL, THAMARASSERY. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENTS: OPPOSITE PARTIES: --------------------------------------------------------- 1. K.HUSSAIN, KANNORA HOUSE, KAKKAYAM P.O. 2. M/S. NEW INDIA ASSURANCE COMPANY LTD., EAST NADAKKAVU, KOZHIKODE-11. BY ADV. SRI.JOY GEORGE - R2 SMT.PRAICY JOSEPH – R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MFA No.144 OF 2007 ===================== Dated this the 17th day of June 2008 JUDGMENT This appeal is preferred against the order of the Commissioner for Workmen's Compensation, Kozhikode in W.C.C.No.146 of 2000. The court below awarded a sum of Rs.7,800/- and it did not take into consideration the disability factor as such for the reason that there is nothing to show about the loss of earning capacity. Admittedly, there was a permanent disability certificate produced before the Commissioner, whereby the Medical Board assessed 15% physical disability. But unfortunately it did not ascertain any professional disability to the claimant. Time and again courts have held that when a claim is made under Section 4 (1)(c) of the Workmen's Compensation Act, what is to be taken into consideration is the loss in earning capacity with respect to the work which the person was capable of doing at the time of accident and not in relation to the work alone which he was doing. A Full Bench of this Court in Vanajakshan v. Joseph(2003(2) KLT 462) has also held so. The Commissioner did not advert to this point at all and it should have called MFA 144/2007 -:2:- for such a document in order to arrive at a decision. The Commissioner jumped into the conclusion that in the absence of that certificate that he can continue the avocation and proceeded to decide the compensation under Section 4(1)(d) of the said Act which he should not have done unless he was satisfied that it cannot be proceeded under Section 4(1)(c) of the Act. Therefore the order passed by the Commissioner is set aside and the matter is remitted back to the said court for fresh consideration and the court below is directed to send the claimant to a Medical Board to assess the loss of earning capacity as envisaged by the Full Bench decision referred to above and thereafter proceed to decide the matter in accordance with law. It shall issue notice to all concerned fixing the date of appearance of the parties. M.F.A is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-