IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 MFA.No. 64 of 2009() -------------------- WCC.271/2003 of W.C. COMMISSIONER.,THRISSUR .................... APPELLANT/ 2ND OPPOSITE PARTY ----------------- THE ORIENTAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE RESPONDENT(S): APPLICANT/IST OPPOSITE PARTY ------------------------------------------- 1. ABDUL SAMEER, S/O.YOOSUF, NAKRAYATH HOUSE, MANNAMANGALAM P.O., THRISSUR DISTRICT. 2. M.Y.SALEEM, S/O.YOOSUF, NAKRAYATH HOUSE, MANNAMANGALAM P.O., PUTHUR, THRISSUR DISTRICT. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.829/2009 IN M.F.A.NO.64/2009 ---------------------- Dismissed 11/4/2011 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. to Judge. HARUN-UL-RASHID,J. ------------------------------- M.F.A. NO. 64 OF 2009 ------------------------------- DATED THIS THE 11TH DAY OF APRIL, 2011 JUDGMENT The substantial questions of law formulate in the appeal are as follows:- i) Has not the Commissioner went wrong in fixing loss of earning capacity at 20% without the wound certificate on record especially when the applicant had no inpatient treatment? ii) Has not the Commissioner bound to refer the applicant to Medical Board especially when Ext.A3 has no relation to the injuries sustained by the claimant? iii) Has not the Commissioner went wrong in considering the application under Section 4(1)(c) of W.C. Act when the applicant sustained only minor injuries which will come only under Section 4(1) (d) of W.C. Act? iv) Has not the Commissioner went wrong in awarding interest from the date of accident especially when the claim was adjudicated only on 28/11/2008? -2- M.F.A.No.64/2009 2. The 2nd opposite party namely, the Oriental Insurance Co. Ltd. in W.C.C.No.271/2003 is the appellant. The appeal is directed against the order passed by the Court of the Commissioner for Workmen's Compensation, Thrissur. The lst respondent herein is the applicant. The applicant met with an accident on 3/11/2002. The applicant's case is that while he was driving an autorickshaw, it hit on an electric post and he sustained injuries. An application was filed claiming compensation for the injuries sustained in the said accident. The applicant was examined as AW-1 and the Doctor, who issued Ext.A3 disability certificate, was examined as AW2. Exts.A1 to A8 were marked on the side of the applicant. Ext.M1 is a copy of the Insurance Policy and Ext.M2 is a copy of FIR and F.I. Statement. Nobody was examined on the side of the opposite party. After relying on the documents and other materials on record, the Court of the Workmen's Compensation Commissioner found that the applicant was a workman as defined under the Workmen's Compensation Act and there was employer-employee relationship -3- M.F.A.No.64/2009 between the first opposite party and the applicant and that the applicant sustained injuries in the accident which arose out of and in the course of employment. The above-said finding is based on the materials produced by the applicant. The opposite parties did not adduce any evidence in support of their stand. The court below rightly held that the applicant sustained injuries in the accident and that there was employer-employee relationship. 3. The court below also relied on Exts.A3 disability certificate and loss of earning capacity certificate issued by the Doctor. It has come out in evidence that the applicant sustained six major injuries. The disability of the applicant was also evaluated. The Doctor reported that on disability evaluation there was shock and mental strain and that the permanent loss of earning capacity as an autorickshaw driver is assessed as 25%. 4. The learned counsel for the appellant contended before the court below that the assessment of the permanent disability and the loss of earning capacity is excessive. The court -4- M.F.A.No.64/2009 below decided that the percentage of loss of earning capacity of the applicant as 20%. The certified disability is 25%. The court below worked out the amount payable under Section 4 of the W.C. Act as Rs.84,574/-. 5. I have examined the evidence on record and heard the arguments of the learned counsel. The findings arrived at by the court below are purely based on facts and materials on record. The decision that the percentage of loss of earning capacity as 20% cannot be said to be unjust or unreasonable. The court below, after considering oral evidence of the applicant, Doctor and the documents, assessed that the percentage of loss of earning capacity as 20%. In the light of the materials on record, no different view is possible in the given facts and circumstances of the case. In the result, the appeals fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.