IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 MFA.No. 128 of 2003(C) ------------------------------- WCC.163/1999 of COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT: 2ND OPP.PARTY: ------------------------- NATIONAL INSURANCE COMPANY LTD., BRANCH GURUVAYOOR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLILCANT AND OPP. PARTY-1: ------------------------- 1. JAISON, S/O. LONAPPAN, KARIYATTI HOUSE, ERAVU, P.O. ARIMBUR. 2. SALIM, S/O. PAREEDKUTTY, THEKKUMPARAMBATH HOUSE, POST EDAKKAZHIYOOR. BY ADV. SRI.G.SREEKUMAR (CHELUR) - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.507/2003 IN MFA, NO.128/2003 DISMISSED 12/08/2008 SD/- J.B.KOSHY , JUDGE SD/- K.P.BALACHANDRAN , JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.F.A.NO.128 OF 2003 () ----------------------------------- Dated this the 12th day of August, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company questioning the award of the Commissioner of Workmen's Compensation. While riding a motor cycle, 1st respondent (applicant before the Commissioner for Workmen's Compensation) sustained injuries in an accident and he claimed compensation. The coverage of the motor cycle was admitted by the Insurance company. There was volar bartons fracture left and applicant was under inpatient treatment in the hospital for seven days. Doctor certified 15% permanent disability. But loss of earning capacity as a patch worker was assessed as 40%. Commissioner awarded compensation for 40% loss of earning capacity. 2. Two contentions are raised by the Insurance M.F.A.128/03 2 company. First contention is that only the driver employed by the insured will get the benefit of insurance. Here, even though applicant was a mechanic, he was authorised by the owner to drive the vehicle, and hence, he is a driver covered by the policy of insurance. With regard to percentage of disability, it was argued that even though certificate was proved by examining the Doctor, the disability is only volar bartons fracture of left hand. By no stretch of imagination, there will be 40% loss of earning capacity by this fracture especially when fracture was completely cured. Even 15% physical disability awarded is on the high side. Under explanation to Section 4 (i) (ii) of the Workmen's Compensation Act, Doctor can certify loss of earning capacity considering the disability mentioned in the schedule. Even if there is 15% physical disability, considering the disability for amputation, there cannot be 40% loss of earning capacity and earning capacity cannot be 15%. At the time of admission, 50% of the deposited amount was allowed to be disbursed to the respondents. We are of the opinion that compensation can be granted for 15% which is equal to 50% of the deposited M.F.A.128/03 3 amount taking into account the interest payable as per the award (part of the award amount was not deposited by the appellant). So the amount already paid need not be returned and balance amount in deposit should be refunded to the appellant Insurance company. Excess amount in deposit shall be reimbursed to the appellant Insurance company. This appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO.128 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th August, 2008