IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 MFA.No. 217 of 2006() --------------------- WCC.365/2002 of Commissioner for Workmen's Compensation .,THRISSUR .................... APPELLANT(S): -------------------- UNITED INDIA INSURANCE COMPANY LTD., PALAKKAD NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, `SHARANYA' HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANT: ------------------------- VIJAYAKUMARAN @ VIJAYAN, S/O.CHAMY, KOLATHINMEDU, NEAR VITHUNNI, NOORNI, PALAKKAD. ADV. SRI.U.BALAGANGADHARAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. (W.C.C.) No.217 of 2006 ----------------------------------------------- Dated 29th September, 2011. J U D G M E N T K.M.Joseph, J. The appellant is the second opposite party insurer in a proceedings under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded a sum of Rs.57,011/- with 12% interest to the applicant. The allegation of the applicant was that he was the driver of a tempo van and on 7.8.2001, while he was driving the vehicle, it collided with a mini bus and he sustained the following injuries : “1. Fracture of right talus - non union lateral processtalus 2. Fracture dislocation of right upper lateral incisor and madible. 3. Loss of upper right lateral incisor. 4. Upper central incisor modile. 5. Contusion upper lip. 6. Contusion right foot. 7. Confused abrasion 1 x 0.5 cm outer aspect of right shoulder.” 2. The Commissioner relied on Ext.A15 disability certificate issued by a medical practitioner, wherein it is stated that physical disability evaluated on 10.2.2005 is about 6% of MFA 217/2006 2 the right lower limb. He had noted the following : “1. Un united fracture with displaced fracture fragment of the lateral process of the right Talus. 2. Irregularity of the articular margins of the right talus and calcaleum due to degenerative changes. 3. Normal head neck and body of the right talus. 4. Normal right distal tibia, fibula and other visible tarsal and metatarsal bones.” It is also stated that applicant had to spend Rs.13,590/- for his treatment as an inpatient for 14 days and after hearing both sides, the Commissioner fixed the loss of earning capacity as 12%. The main complaint of the appellant relates to the fixation of loss of earning capacity. As there was no certificate to that effect by a qualified medical practitioner, we had, by our order referred the workman to a Medical Board. The Medical Board certificate is before us. The certificate would show that on examination, his right ankle movements are normal, no tenderness, there is no physical deformity and there is nothing to suggest that he is incapable of driving a vehicle and the loss of earning capacity as a driver may be taken as 'zero'. MFA 217/2006 3 3. We heard learned counsel. We have already noticed the nature of the injuries. The applicant was aged 25 years at the time of the accident. The physical disability was evaluated at about 6% of the right lower limb. In the circumstances of this case, we dispose of the appeal by reducing the loss of earning capacity from 12% to 6% and on the said basis, the appellant need pay only a sum of Rs.28,505/-, with interest as ordered. The impugned order is modified as above. The appellant will be entitled to withdraw any amount deposited in excess of what is ordered. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.