IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 MFA.No. 219 of 2006(D) ------------------------------ WCC.217/2002 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY : -------------------------------------------- NATIONAL INSURANCE COMPANY LTD., GURUVAYUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, AJAYA VIHAR, M.G. ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/APPLICANT : -------------------------------- SAJEEVAN. K.K., S/O.KUNJUMON, KAMBARAMBATH HOUSE, THEKKUMCHERRY, CHAVAKKAD, THRISSUR DISTRICT. ADV. SRI.K.N.PADMAKUMAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 219 of 2006(D) ORDER ON I.A.NO.2310 OF 2006 IN M.F.A.219 OF 2006 DISMISSED 29.10.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J ----------------------- M.F.A.(W.C.C.)No. 219 OF 2006 --------------------------------- Dated this the 29th day of October, 2008 JUDGMENT This appeal is preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.No.217/2002. The applicant before the said Commissioner sustained injuries in an Autorickshaw accident and he has claimed a compensation of Rs. 50,000/- under the provisions of the Workmen's Compensation Act. The Insurance Company has disputed the liability and the quantum of compensation etc. A perusal of the order would reveal that the Workmen's Compensation Commissioner has not properly considered the matter in the light of the settled position of law. The Insurance Company filed an application before the Commissioner to refer him to a Medical Board which was simply rejected on the ground that the doctor is an experienced person. It can be seen from answer to issue No.3 that the injuries sustained are (1) Multiple abrasion of right knee and both hands (2) lacerated wound over the chin and face and (3) fracture crown of upper two incisor teeth. The doctor, an Orthopedics surgeon fixed the permanent disability at 8% and 25% loss on earning capacity. The Tribunal reduced it to 20%. There is no head injury and there are only M.F.A.(W.C.C.)No. 219 OF 2006 -2- abrasions and lacerations and the fracture was on the teeth. I am afraid how the doctor had jumped into the conclusion regarding Chronic post traumatic headache, vertigo and giddiness. When the Insurance Company moved an application for examination by a Medical Board that should have been considered by the Court and would have obtained a Expert report for the purpose. Further a full bench of this Court in the decision reported in Vanajakshan v. Joseph [2003 (2) KLT 462 (FB)] held how the loss of earning capacity has to be assessed. It is not known whether the doctor has followed those principles. Therefore the award passed under challenge is set aside. The matter is remanded back to Workmen's Compensation Commissioner and is directed to refer the applicant before him to a Medical Board for expert examination which should consist of a Dental Surgeon, an Orthopedician, a Neuro Surgeon and an expert on General medicine. Thereafter the parties be permitted to adduce evidence and the case be disposed of in accordance with law. The Workmen's Compensation Commissioner shall issue notice to the parties fixing the date of appearance. M.N. KRISHNAN, JUDGE vkm