IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MFA.No. 154 of 2007() --------------------- WCC.56/2003 of W.C.C., KANNUR .................... APPELLANT: 2ND OPPOSITE PARTY: ------------------------------------------------------- THE NATIONAL INSURANCE CO.LTD., KASARAGOD, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: APPLICANT/1ST OPPOSITE PARTY: ------------------------------------------------------------------------------ 1. K.RAJA, S/O.MEERA, KORAKODE, NAGRAKATTE, KASARAGOD. 2. SANDEEP.K.S., S/O.SADANANDA, HOUSE NO.18/38, KORAKKODE, NAGARAKATTE, P.O.KASARAGOD. BY ADV. SRI.T.SETHUMADHAVAN - R1 SRI.PUSHPARAJAN KODOTH - R1 SRI.K.JAYESH MOHANKUMAR – R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1933/2007 IN M.F.A.NO.154/2007 DISMISSED 12/06/2008 SD/-M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.N.KRISHNAN, J. -------------------------- M.F.A. No. 154 OF 2007 --------------------- Dated this the 12th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Workmen's Compensation Commissioner, in W.C.C. 56/03. The Tribunal fixed the disability of the applicant at 10% fixing the income at Rs.3,000/- and awarded the compensation. 2. Learned counsel for the Insurance Company would contend that the injuries sustained by the applicant are not of such a serious nature which will result in disability and therefore the Workmen's Compensation Commissioner has erred in awarding compensation. Admittedly, it is not a schedule injury. Hence the provision which is applicable is 4(1)(c)(ii) and not 4(1)(c)(i) where the permanent partial disability result from the injury in the case of an injury not specified in schedule I. Such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner permanently caused by the injury). So the section contemplates a disability certificate issued by a qualified practitioner assessing loss MFA No.154/07 2 of earning capacity. Unfortunately, the certificate lacks particulars on that aspect. Therefore, the compensation is assessed in accordance with the section and therefore, there is substantial question of law involved in the appeal. But just because it is not there, the claim need not be thrown out. An opportunity can be given to the applicant to produce both the oral and documentary evidence in support of his respective contentions. If necessary, the Insurance Company is at liberty to request the Workmen's Compensation Commissioner to refer the applicant to a medical board to asses the disability as contemplated under the provisions of law. Therefore, the award under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with an opportunity to the applicant and Insurance Company to produce the oral and documentary evidence in support of their respective contentions. The Workmen's Compensation Commissioner shall issue notice fixing the date of appearance of both parties. Being a matter of 2003, urgency shall be shown for an expeditious disposal. M.N.KRISHNAN, JUDGE vps MFA No.154/07 3