IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 MFA.No. 155 of 2010() -------------------------- WCC.10/2006 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER),THRISSUR .................... APPELLANT(S): OPPOSITE PARTY --------------------------------------------------- THE MANAGING DIRECTOR, TRICHUR CO-OPERATIVE SPINNING MILLS LTD., P.O.VAZHANI, THRISSUR DISTRICT. BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): APPLICANT & RESPONDENT ------------------------------------------------------------------- 1. ROY. S/O.VARKEY, OLAMELAKUZHI HOUSE, CHALAMPADAM, KOOTTALA, P.O.THRISSUR DISTRICT. 2. COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR. R1 BY ADV. SRI.V.M.KRISHNAKUMAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2256/2010 IN MFA. NO.155/2010 DISMISSED 13/12/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 155 OF 2010 = = = = = = = = = = = = = = = Dated this the 13th day of December, 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. 10/06. It is the case of the applicant that he had sustained an employment injury and that the Compensation Commissioner has awarded a sum of Rs.26,564/-. It is against that decision the management has come up in appeal. 2. Heard the learned counsel for the appellant as well as the respondent. The accident is of the year 1994 and the disposal of the case is somewhere in 2009. Once the case was dismissed for default and later it was restored to file. Now the three points which M.F.A. 155 OF 2010 -:2:- are urged before me are (1)there was an agreement between the parties settling the matter by virtue of which Rs.7,500/- has been paid as full and final settlement of the claim (2) the loss of earning capacity is not assessed in the light of the decision of this Court in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) and (3) the application was dismissed for default on account of the fault of the applicant and therefore he is entitled to get interest from 1994 onwards. 3. Learned counsel for the appellant submits before me that the accident is of the year 1994 and he is confident to produce the agreement whereby the parties had entered into a settlement. If there is such an agreement and it is accepted and proved two questions may arise whether it is in full and final settlement M.F.A. 155 OF 2010 -:3:- of the claim or at least whether the amount that is paid can be adjusted. So I am inclined to grant an opportunity to produce the agreement if any leaving it open to be decided whether it is acceptable. 4. In the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) this Court made it very clear that loss of earning capacity is to be assessed not on the basis of the work which one was doing but on the entire work which one was capable of doing. So the loss of earning capacity has to be assessed in that fashion and the matter has to be decided. 5. Lastly, regarding interest. It is true that in the light of the decision of the Division Bench of this Court reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 entitlement of interest is from the date of M.F.A. 155 OF 2010 -:4:- accident which was based on the Constitution Bench ruling of the Hon'ble Supreme Court reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). But the question would be, suppose a person himself had been negligent in prosecuting the matter whether he is entitled to get interest for his laches for the period of delay is also a matter that requires consideration. Therefore the order under challenge is set aside and the matter is remitted back to the Commissioner for consideration of the matter in the light of the discussions made in the previous paragraphs of the judgment by permitting all concerned to produce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. M.F.A. 155 OF 2010 -:5:- 6. The Compensation Commissioner is directed to issue notice to the parties intimating the date of appearance and he is also directed to dispose of the case within three months from the date of appearance of parties before that Court. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-