IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 MFA.No. 72 of 2009(A) ------------------------------- (AGAINST THE ORDER DTD. 25/05/2008 IN W.C.C.NO.255/2002 OF W.C.C.,KOZHIKODE) .................... APPELLANT/2ND OPPOSTIE PARTY: ---------------------------------------------------- M/S.UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, VELIMANNA BUILDING, THAMARASSERY. BY ADV. SRI.RAJAN P.KALIYATH. RESPONDENTS/APPLICANT AND OP1: -------------------------------------------------------- 1. A.K.ABDUL KAREEM, S/O.AYAMMED KUTTY, AREEKARAKANDY HOUSE, M.M.PARAMBA, UNNIKUAM, POONOOR, KOZHIKODE. 2. C.P.ABOOBACKER, CHERUVATHU POYIL HOUSE, UNNIKULAM, KOZHIKODE. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. ........................................... M.F.A.NO.72 OF 2009 ............................................. Dated this the 26th day of May, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Kozhikode in W.C.C.No.255/2002. A perusal of the order would reveal that the Workmen's Compensation Commissioner had fixed the occupational disability at 22%, took an income of Rs.3,000/= and granted a compensation of Rs.83,128/= with 12% interest from the date of accident. Challenging the fixation of disability as well as interest awarded from the date of the accident, the insurance company has preferred this appeal. 2. Let me first consider about the occupational disability. A perusal of the order does not reveal that the methodology adopted by the Workmen's Compensation Commissioner is in fixing the disability rather loss of earning capacity. In Vanajakshan v. Joseph (2003 (2) KLT 462 (FB), this Court held that loss of earning capacity has to be calculated on the basis of the loss of earnings with respect to all works which one was capable of : 2 : M.A.C.A.NO.72 OF 2009 performing and not with reference to a particular job a person was performing. The award does not reveal whether the principle laid down therein has been found out. Therefore, the matter requires reconsideration regarding loss of earning capacity. So far as interest is concerned, a Division Bench of this Court in National Insurance Company Ltd. v. Rekha (2008 A.C.J. 886) had held that interest is liable to be paid from the date of accident. In that decision, the Division Bench had considered a later Division Bench ruling of the Hon'ble Supreme Court of India as well as an earlier Constitutional Bench decision of the Supreme Court reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). It was held by the Division Bench that when there is conflict of decisions of a later Division Bench and an earlier Constitutional Bench, the earlier Constitutional Bench decision has to prevail and therefore held that the claimant is entitled to 12% interest in that case. So regarding the interest, no interference is called for. 3. In the result, the appeal is partly allowed and the : 3 : M.A.C.A.NO.72 OF 2009 amount awarded is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with a direction to send the appellant to a medical board to assess the loss of earning capacity as envisaged under the decision in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB). Parties may be permitted to adduce both documentary as well as oral evidence in support of their respective contentions as stipulated in that decision and the matter be disposed of in accordance with law and the Workmen's Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance. Junction of R2 is dispensed with. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.72 OF 2009