IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 MFA.(W.C.C.)No. 6 of 2010() ------------------- WCC.353/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LIMITED, PALAKKAD NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY MR.MATHEWS JACOB, SENIOR ADVOCATE, MR.P.JACOB MATHEW. RESPONDENT(S): APPLICANT: ----------------------------------------------- S.R.GURUVAYOORAPPAN, S/O.SUBBIAN CHETTIAR, M.PUTHOOR, PALPATHA MEDU, GOVINDAPURAM P.O., PALAKKAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.73/2010 IN MFA (WCC) NO.6/2010 DISMISSED 22/02/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 6 OF 2010 = = = = = = = = = = = = = = = Dated this the 22nd day of February, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C. 353/03. The applicant sustained an injury in the course of employment and the Workmen's Compensation Commissioner awarded a sum of Rs.38,043/- with interest from the date of petition. It is against that the insurance company has come up in appeal. 2. A perusal of the order itself would reveal that even the income is fixed on the basis of conjectures and surmises. It appears that the claimant had claimed an amount of Rs.6,000/- but the Commissioner fixed it at Rs.3,300/- without materials. So it is a matter which is not done in accordance with law and therefore is a substantial question of law which requires reconsideration. 3. Again regarding the loss of earning capacity, the Doctor was examined and he found the permanent disability M.F.A. 6 OF 2010 -:2:- at 5% and loss of earning capacity at 13%. Time and again this Court had cautioned the manner in which loss of earning capacity has to be arrived at. A reference to the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB) would clearly indicate as follows. “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. So unless there is concrete evidence to establish that the loss of earning capacity is assessed in that fashion is imperative that when the insurance company wanted him to be examined by a medical board, the Court should not have simply brushed aside that application without application of M.F.A. 6 OF 2010 -:3:- mind. Therefore the order under challenge is set aside and the matter is remitted back to the Compensation Commissioner for fresh consideration and disposal after permitting the parties to produce documentary as well as oral evidence in support of their respective contentions and then direct the claimant to undergo examination by a Medical Board and the Medical Board can assess the loss of earning capacity as decided in Vanajakshan v. Joseph (2003 (2) KLT 462(FB). The Commissioner can issue notice to the parties for appearance before the Court and then proceed in accordance with law. The amount which is lying in deposit shall remain in deposit till a final decision is taken in the matter. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-