IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 Ins.APP.No. 68 of 2004() ---------------------------------- ICA.6/2002 of EMPLOYEES INSURANCE COURT, PALAKKAD .................... APPELLANT/APPELLANT: ------------------- K.V.JOSE, KONGOTHARA HOUSE, KOTTAPPURAM, KORATTY. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT/ RESPONDENT ----------------------- EMPLOYEES STATE INSURANCE CORPORATION REP. BY ITS REGIONAL DIRECTOR (KERALA) PANCHADEEP BHAVAN, ROUND NORTH, THRISSUR. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== INS.A. No.68 OF 2004 ===================== Dated this the 16th day of June 2008 JUDGMENT This appeal is preferred against the award of the Employees' Insurance Court, Palakkad in ICA.No.6/2002. The appellant was an employee of the Vaigi Thread Processors Ltd. He sustained employment injuries. A perusal of paragraph 10 of the award would reveal that the Medical Board comprising of six Doctors including an Orthopedic Surgeon had assessed the disability of the claimant at 40% and another Doctor who examined him had assessed his disability at 43% and the loss of earning capacity at 100% having regard to his job as a Tube Winter in Vaigi Thread Processors Ltd.. The Tribunal accepted the disability certificate of the Medical Board at 40% and granted compensation accordingly. It is against that decision the claimant has come up in appeal. 2. How the disability has to be assessed has been laid down in the Full Bench decision of this Court in Vanajakshan v. Joseph(2003(2) KLT 462(FB)). It was a case with reference to Workmen's Compensation Act. The guiding principle therein is that the compensation has to be determined INS.A.No.68/2004 -:2:- 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 this is the principle that has to be followed in cases where disability arises and the percentage of disability is to be determined. Now it is not clear from the award that 40% disability assessed by the Medical Board relates to the loss of earning capacity of that particular individual with reference to the whole work which he was capable of doing at the time of accident. So a reconsideration is necessary and therefore I set aside the order passed by the Employees' Insurance Court and remit it back to the same court for consideration regarding this point. It is desirable that the person is again referred to a Medical Board and the permanent disability as well as the loss of earning capacity of that person with reference to the work which he was capable of doing at the time of the accident be assessed and thereafter the matter be disposed of in accordance with law. The court below is directed to issue notice to the parties fixing the date of appearance and give them sufficient opportunity to substantiate INS.A.No.68/2004 -:3:- their contentions. Ins. Appeal is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-