IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MFA.No. 265 of 2009 ---------------------------- WCC.345/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR. .................... APPELLANT(S): APPLICANT: ----------------------------------------- A.P. SAHADEVAN, S/O. PARAN, ATTUVEPPIL HOUSE, PUTHOOR.P.O, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): OPPOSITE PARTIES: ------------------------------------------------------- 1. P.K. AYOOB, M/S AYOB & COMPANY, EDAMUTTOM.P.O, THRISSUR. 2. NATIONAL INSURANCE CO. LTD., REP. BY BRANCH MANAGER, BRANCH OFFICE, AMBIKA ARCADE.P.O, M.G. ROAD, THRISSUR. R2 BY ADV. SRI.LAL GEORGE THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.265 of 2009-F ----------------------------------------- Dated, this the 6th day of September, 2011 J U D G M E N T K.M.Joseph, J. This appeal is filed by the claimant in a proceedings under Sec.22 of the Workmen's Compensation Act. He claimed compensation on the ground of the following injuries sustained by him as a result of the accident which was the subject matter of the claim. “1) Cervical spondylosis with sprain. 2) Cervical spine injury with fracture on C5 & C6. 3) Haemoarthesis ® knee. 4) Injury on ® upper C5 & C6. 5) Injury to vertebral column. 2. The applicant examined himself and also the medical practitioner who issued Ext.A6 disability certificate. The Commissioner has found that the applicant has suffered loss of earning capacity to an extent of 35% and taking note of his income as Rs.3,300/- per month awarded compensation in a sum of Rs.1,06,091/-. Following is the discussion of the Commissioner in regard to issue No.3 which was whether there is any permanent disability and if so what is the percentage of his loss of earning capacity? “Ext.A6 is disability and loss of earning capacity MFA 265/2009 -2- certificate issued by Dr.S.S.Subramanian, M.B.B.S., D.I.H, M.Phil. The following disabilities and difficulties are noted as follows: 1) Fracture of cervical Spine (C5 C6) injuries upper radicular group resulting in MONOPLEGIA (Rt) upper arm. 2) Non-Weight bearing with (Rt) Hand. 3) VERTIGO on turning neck side ways. 4) Non-weight bearing over Read. 5) Unfit for the job of loading and unloading. Permanent Disability is assessed as 24%. Loss of earning capacity is assessed as 50%. In order to prove the disability certificate, the doctor was examined as before this court. He (Aw2) was cross examined by the counsel for 2nd opposite party. The contention of the learned counsel appearing on behalf of 2nd opposite party that the permanent disability and loss of earning capacity is excessive and filed petition to refer the applicant to Medical Board and it was rejected after hearing the arguments for the respective parties and close verification of medical records and deposition of the medical witness. Considering all these facts I decide that the percentage of Loss of earning capacity of the applicant is 35%.” 3. Aggrieved by the finding of the Commissioner taking loss of earning capacity at 35% that the applicant is essentially before us. We heard the learned counsel for the appellant. The learned counsel for the appellant would contend that the medical certificate shows that the appellant has 50% disability. He is unable to do loading and unloading work. This is MFA 265/2009 -3- the testimony of the appellant and there is also evidence by the medical practitioner. 4. We went through the disability certificate. The disability certificate, in fact, says that loss of earning capacity as loading and unloading is 50% and earning capacity is assessed by professional experience and by the perfectness of body parts for the performance of particular job. In fact, Section 4 (1) (c ) speaks about determination of loss of earning capacity with reference of all works which he is capable of doing at the time of accident. The order of the Commissioner would show that the insurer had filed Medical Board petition and it is rejecting the same that the Commissioner has fixed the percentage at 35%. In the facts of this case, no question of law arises. We find no merit in the appeal and it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS