IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 MFA.No. 448 of 2002(D) ---------------------- WCC.193/1998 of W.C.C.,THRISSUR .................... APPELLANT: II OPPOSITE PARTY: --------------------------------------------------- THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: APPLICANT & I OPPOSITE PARTY: ---------------------------------------------------------------------------- 1. SUDHEESH @ SUBEESH, S/O.GOVINDANKUTTY, MANGADATH HOUSE, RESIDING AT KADUKUTTY DESOM, KALLUR VADAKKUMMURI VILLAGE, KADUKUTTY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. MOHANAN A.K., ALLUPARAMBIL HOUSE, NORTH CHALAKUDY P.O. BY ADV.SRI.P.V.BABY (CAVEATOR) FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.2597/2002 IN M.F.A.NO.448/2002 DISMISSED 28/08/2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss J.B. Koshy & Thomas P. Joseph, JJ. -------------------------------------- M.F.A. No. 448 of 2002 --------------------------------------- Dated this the 28th day of August, 2008 Judgment Koshy,J. First respondent in this case sustained injuries in an accident during the course of employment. As a result of the accident, he sustained very serious injuries which led to amputation of third left toe. The doctor certified that there is 10% permanent disability and 40% loss of earning capacity as an autorickshaw driver. The following injuries are noticed in the medical certificate: "(a) Loss of the 3rd toe left from the proximal phalanged joint due to amputation. (b) Reuinma formation on the scar of the amputated left 3rd toe. (c) Pain on standing on toes of left foot with parted stiffness of the 2nd, 3rd, 4th left toes with painful movements. (d) Toe gripping is poor with left 2nd, 3rd and 4th toes. Functionally he has got difficulty to stand on tip toes, to press strongly with left foot to grip with left toes, to walk or run or jump to pull or push vehicle." He was an autorickshaw driver by profession and since there was amputation of 3rd left toe from the proximal phalanged joint and M.FA.No.448/2002 2 ever since after seeing the medical certificate, the Commissioner accepted the loss of earning capacity as certified by the doctor under section 4 (1) (c) (ii). The Commissioner can assess the loss of earning capacity on the basis of the certificate issued by the medical practitioner. Even though he claimed that he was getting Rs.4,000/- as monthly income, taking the statutory provisions only Rs.2,000/- was taken as the monthly income and compensation was calculated. Service is not so far completed. Considering the injuries sustained by the claimant and considering the job he was doing, we are of the opinion that no interference is required and there is no substantial question of law involved. The appeal is dismissed. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.FA.No.448/2002 3 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.F.A. No.448/2002 ------------------------------------- Judgment Dated:28th August, 2008