IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 MFA.No. 213 of 2010() ------------------------------ WCC.216/2004 of W.C.C.,THRISSUR .................... APPELLANT(S): --------------------- M/S.NATIONAL INSURANCE COMPANY LTDD KOLLANNUR DEVASSY SMARAK BUILDING, THRISSUR BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): ------------------------- 1. MOHANAN AGED 46 YEARS, S/O.SANKUNNY,ELAMTHURUTHY HOUSE, POST, VETTUKAD PIN-680014 CHERUKUNNU DESOM,THRISSUR 2. MADHUSOODHANAN, S/O.SREEDHARAN, NADUVINKUNNAM KALATH HOUSE, P.O.,AVANUR-680001 THRISSUR. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. ........................................... M.F.A.NO.213 OF 2010 ............................................. Dated this the 11th day of November, 2010. J U D G M E N T This is an appeal preferred against the award of the Workmen's Compensation Commissioner in W.C.C.No.216/2004. The claimant, an auto driver by profession, sustained injuries in a road accident and has claimed compensation under the Workmen's Compensation Act. The Tribunal has awarded him a compensation of Rs.40,259/= with 12% interest from the date of accident. 2. An appeal is preferred by the insurance company against the assessment of loss of earning capacity as well as award of interest from the date of accident. The learned counsel for the insurance company would submit before me that the disability certificate relied upon by the Workmen's Compensation Commissioner had only assessed the loss of earning capacity as a driver. The learned counsel had brought to my notice the decision of a Full Bench of this Court reported in Vanajakzhan v. Joseph (2003 (2) KLT 462). In that case, the Full Bench held that while : 2 : M.F.A.NO.213 OF 2010 determining the loss of earning capacity, one has to find out the loss of earning capacity with respect to all the works which one was capable of doing and not the work which he was doing. Then the Full Bench said on that aspect that evidence has to be adduced and the matter has to be decided. But, unfortunately, in the case before me the Workmen's Compensation Commissioner had just relied upon the disability certificate showing the loss of earning capacity as a driver alone. Therefore it is incorrect which requires correction. 3. The next point is regarding the entitlement of interest whether from the date of award or from the date of accident. So far as this Court is concerned, the matter is settled by a decision of the Division Bench of this Court in National Insurance Company Ltd. v. Rekha(2008 ACJ 886). In that decision the Division Bench of this Court held that by virtue of the decision of a Constitution Bench of the Supreme Court in the decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222), the entitlement is from the date of accident. The Division Bench : 3 : M.F.A.NO.213 OF 2010 also considered the point when there is a later conflicting decision of the Supreme Court rendered by a Division Bench only the Constitution Bench decision will prevail and therefore held that the entitlement is from the date of accident and not from the date of award. It is also followed by another Division Bench of this Court and also by the Himachal Pradesh High Court in the decision reported in New India Assurance Co. v. Budh Ram (2009 (4) TAC 614). So in the light of the said decisions, the entitlement from the date of accident does not call for interference. 4. Therefore, the award under challenge is set aside so far as it relates to the quantum is concerned with a direction to the Workmen's Compensation Commissioner to refer the person to a medical board and find out the loss of earning capacity, if any, with respect to that person in the light of the decision of this Court in Vanajakzhan v. Joseph (2003 (2) KLT 462 FB) and thereafter permit the parties to adduce evidence and dispose of the matter in accordance with law. The Workmen's Compensation Commissioner is directed to issue notice to the parties fixing the date of : 4 : M.F.A.NO.213 OF 2010 appearance. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : M.F.A.NO.213 OF 2010 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 11th day of November, 2010. J U D G M E N T