IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 MFA.No. 22 of 2007 --------------------------- [WCC.340/2003 OF COMMISSIONER FOR WORKMEN'S COMPENSATION THRISSUR] .................................. APPELLANT: 2ND OPPOSITE PARTY -------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, KUNNAMKULAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: APPLICANT ---------------------------------------- MURALI, S/O.NARAYANAN NAIR, POTTAYIL HOUSE, KORUMBISSERY DESOM, MANAVILASSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008,THE COURT ON THE SAME DAY DELIVERED FOLLOWING: ORDER ON CMP NO. 392/2007 IN MFA NO. 22/2007 C. DISMISSED 18/03/2008. SD/- J.B.KOSHY, JUDGE. SD/- K.T.SANKARAN, JUDGE. True copy tga J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------- M.F.A.(W.C.C)No.22 OF 2007 ------------------------------------- Dated 18th March, 2008 JUDGMENT Koshy,J . Respondent workman met with an accident in the course of employment and he applied for compensation. Commissioner for Workmen's Compensation awarded compensation on finding that the vehicle in which he was employed as driver was insured by the appellant insurance company and insurance company was directed to deposit the compensation awarded. This appeal is filed by the insurance company contending that the amount awarded was very high. First contention is that originally the claimant filed an application for compensation claiming Rs.35,000/=. That application was dismissed for default. After two years a delay condonation petition and restoration application were filed claiming a compensation of Rs.2,62,164/=. The restoration application was allowed, case was renumbered and finally the Commissioner awarded a compensation of Rs.79,693.20. As a result of the accident, the workman suffered inferior radio ulnar joint disruption resulting partial ankylosis of right wrist. Doctor assessed physical disability to the arm at 14% and whole body disability at 11%. After assessing the same loss of earning capacity as a driver was assessed at 35%. Tribunal awarded compensation for 30% loss of earning capacity MFA(W.C.C).22/2007 2 and awarded interest from the date of accident even though originally the application was dismissed and restored after two years. Explanation II to sub-clause(ii) to Section 4(1)(c) provides that qualified medical practioner can certify loss of earning capacity corresponding to the injuries specified in Schedule I. Here, the injury was only to the wrist of the right hand and considering the nature of injuries, it cannot go above the percentage of physical disability certified i.e., 11%. Before the Commissioner also appellant filed an application for sending the workman for examination by medical board for assessing loss of earning capacity as the doctor assessed 35% loss of earning capacity without any scientific basis. That was rejected by the Commissioner. But, in appeal, we have directed the appellant to be examined by the medical board and the Superintendent of Medical College Hospital informed by letter dated 23.2.2008 that the workman was directed to appear before the medical boaerd on 12.12.2007 and 13.2.2008, but, he did not appear before the medical board and he did not even apply for an adjournment. In the above circumstances, we are of the view that compensation need be awarded only for 11% loss of earning capacity. If that be so, compensation payable will be (2000 x 60 x 221.37 x 11 ) 100 100 Rs.29,220.84 rounded to Rs.29,221/-. The liability of the appellat is to deposit the above amount with interest at the rate of 12% from the MFA(W.C.C).22/2007 3 date of application 28.1.1998 till the date of deposit. Since payment of interest is statutory, we are unable to reduce the same. Appellant has already deposited Rs.1,55,618/= and 50% of the same was prdered to be disbursed to the workman by order dated 23.2.2007, that will cover the amount awarded with interest thereon. Excess amount in deposit should be refunded to the appellant insurance company. The appeal is allowed to the above extent. J.B.KOSHY JUDGE K.T.SANKARAN JUDGE tks