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 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 MFA.No. 216 of 2006 ----------------------------- WCC.76/2002 of COMMISSIONER FOR WORKMEN'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER), THRISSUR .................... APPELLANT(S): APPLICANT: ---------------------------------------- G. RAJAGOPALAN, S/O. GOPINATHAN, RESIDING AT KANDASSERIYIL HOUSE, ATHINADU SOUTH, KATTIKADAVU P.O., KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): OPPOSITE PARTY: --------------------------------------------------- THRISSUR CORPORATION, REPRESENTED BY THE SECRETARY, CORPORATION OFFICE, THRISSUR-680 001. BY ADV.SRI.K.B.MOHANDAS SRI.T.G.LELLULAL. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.216 of 2006 ----------------------------------------- Dated, this the 26th day of September, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the claimant in a proceedings under Section 22 of the Workmen's Compensation Act, 1923. He laid the claim for compensation alleging an accident in which he suffered the following injuries. “1.Malunited fracture of the 2nd lumbar spices with reduction of height of the vertebra causing Kyphotic deformity of the spines. 2. Stiffness and pain of the lumbar spines causing difficulty to bend forwards and backward. 3. Difficulty to in bending side wards and difficulty in rotation of spines. 4. Chronic backache and pain radicting to the lower limbs due to lumber spondylosis. 5. Partially recovered paraplegia causing unsteady gate due to diminished power of the lower limb grade IV (Normal Grade). 6. Stiffness and pain of the right elbow causing difficulty to hold heavy weight.” These injuries have been noted in Ext.A4 disability MFA 216/2006 -2- certificate issued by Aw2 Medical Practitioner. Appellant has also given evidence as Aw1. Appellant was working as Line Assistant under the respondent. Appellant was aged 39 years at the time of accident. 2. The Commissioner took the monthly wages of the appellant at Rs.2,000/- and loss of earning capacity at 15%, and, applying the formula the appellant was found entitled to Rs.33,642/- with interest at 12% from the date of accident. 3. We heard the learned counsel for the appellant and learned counsel for the respondent. Learned counsel for the appellant addresses two issues before us. Firstly, he would contend that the Commissioner acted illegally in taking the monthly income at Rs.2,000/-. He would submit that pursuant to the direction issued by this Court the appellant has in fact produced two latest certificates issued showing the monthly wages at Rs.4,600/- as on the date of the accident. Next, he would contend that the Commissioner has acted illegally in reducing the loss of earning capacity from 40% as assessed by Aw2 Medical Practitioner to 15%. Learned counsel for the respondent would support the impugned order. MFA 216/2006 -3- 4. As far as the question of increasing the monthly income from Rs.2,000/- to Rs.4,000/- based on the actual income is concerned, admittedly the accident took place on 18.11.1999. Having regard to the date of accident and having regard to the maximum income that could be taken into consideration at the time of accident which was Rs.2,000/- we repel the first contention. 5. As far as the 2nd contention is concerned, we see some merit in the contention of the appellant. We have already noticed the disability suffered by the appellant. There was medical evidence in the form of disability certificate besides the Medical Practitioner was also examined as Pw2. All that the Commissioner says is that the opposite party argued that the applicant is still working in the establishment as he did prior to the accident with the same service benefits. It is further stated that after considering the arguments of the parties he decided that loss of earning capacity is 15%. 6. Apparently, this is a case under Section 4 (1) (c ). What is relevant is that it speaks of loss of earning capacity and not total inability to work. It may be true that the appellant was MFA 216/2006 -4- working. But, we must consider the loss of earning capacity having regard to all facts. After having heard the learned counsel, we feel that we have to enhance the loss of earning capacity from 15% to 28%. On the said basis the appellant will be entitled to Rs.62,818/- in place of the amount ordered by the Commissioner with 12% interest from the date of accident till the date of deposit. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS