IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 MFA.No. 131 of 2006() --------------------- WCC.29/1999 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY -------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP.BY ITS ASST. MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS: APPLICANT AND 1ST OPPOSITE PARTY ----------------------------------------------- 1. SUDHAKARAN P.K.,S/O.KOCHAPPAN, PALIKKAL HOUSE, KOLANATTUKARA,P.O.CHOOLISSERY,THRISSUR. 2. SIDHARTHAN, PROPRIETOR,SIDHARTHA REGENCY, P.B.NO.100, KOKKALAI,THRISSUR-21 ADV. SRI.P.K.RAVISANKAR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 131 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of August, 2011 JUDGMENT K.M. Joseph J., This appeal is filed by the 2nd respondent/Insurer against the order of the Workmens' Compensation Commissioner, Thrissur ordering compensation to the first respondent herein for a sum of Rs.91,758/- with simple interest at the rateof 12% per annum from 31.12.97 till the date of deposit. 2. We heard learned senior counsel for the appellant and learned counsel for the first respondent,claimant. 3. The Workmens' Commissioner directed that the first respondent can be compensated with an amount of Rs.1,83,515/- and out of that, the appellant was directed to pay a sum of Rs.91,757/- with 12% interest. The Commissioner has taken the M.F.A.(W.C.Act) No. 131 of 2006 :2: monthly income of the first respondent as Rs.2,000/- for arriving at a total compensation of Rs.1,83,515/-. This is done on the basis that the monthly income is Rs.2,000/-. But when calculating the compensation amount which the appellant is liable to pay, the monthly income is taken as Rs.1,000/-. This was done for the reason that premium was received based on monthly income of Rs1,000/-. Accordingly only half the compensation was directed to pay by the appellant. 4. Learned senior counsel for the appellant raised two contentions. In the first place he would contend that this is a case where the worker/applicant cannot be said to be a worker by the employer and there is no evidence produced by the applicant to rebut the said contention. Secondly, he would dispute that the Commissioner has fixed the loss of earning capacity at 70%, whereas the permanent disability assessed by the Medical Practitioner, who was examined as AW2 is 40%. But he assessed the loss of earning capacity as 100% without any basis. But without any basis, the percentage of loss of earning capacity was M.F.A.(W.C.Act) No. 131 of 2006 :3: reduced and fixed as 70% by the Commissioner, it is submitted. 5. As far as the question relating to calculation of the compensation amount, we feel that we need not reopen the finding. Further question is regarding loss of earning capacity. Learned senior counsel for the appellant brought to our notice to Sec.4(1)(c) of the Employees Compensation Act, 1923, which reads as follows: “Where permanent partial disability result from the injury: (i) In the case of an injury specified in Part II of schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury: and (ii) In the case of a injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. M.F.A.(W.C.Act) No. 131 of 2006 :4: Explanation II: In assessing the loss of earning capacity for the purpose of Sub-clause II, the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. Schedule I - Part I. Loss of both hands or amputation at higher sites Loss of hand and a foot Double amputation through leg or thigh, or amputation Loss of sight to such an extent as to render the claimant unable to perform any work for which eye-sight is essential Very severe facial disfigurement Absolute deafness”. 6. Learned senior counsel for the appellant would point out that in terms of the said findings, when loss of earning capacity is fixed, it becomes the duty of the medical practitioner to look into the entries of the schedule and to ascertain whether loss of earning capacity is in conformity with the entries in the schedule. He would point out that in the nature of injuries, which have been sustained M.F.A.(W.C.Act) No. 131 of 2006 :5: by the employee, in this case, would not warrant the grant of 100% loss of earning capacity. He would further point out that in regard to the filing of application for referring the applicant to the Medical Board and it is stated in the order that the percentage of loss of earning capacity is reduced after hearing the Medical Board petition. He would submit that the order cannot be sustained. 7. Per contra, learned counsel for the first respondent would draw our attention to the nature of the injuries sustained. Having regard to the time gap, he would submit that this is a case where an appropriate loss of earning capacity for arriving compensation may be fixed by this Court. He would submit that the first respondent/applicant is a pandal worker. Learned counsel would also submit that the Commissioner has fixed the monthly wage as Rs.2,000/-. 8. Having regard to the facts of the case, the loss of earning capacity can be fixed as 55% instead of 70%. We notice that there is no appeal by the employer challenging the compensation of loss of earning capacity at 70%. We need not discharge the said relief. M.F.A.(W.C.Act) No. 131 of 2006 :6: As far as the appellant is concerned, on the basis of the reasoning adopted, the compensation payable would be Rs.72,095/- (Rs. Seventy two thousand ninety five only) with 12% interest per annum. Accordingly we allow the appeal and direct that the appellant will be liable to pay Rs.72,095/- with 12% interest from 31.1297 till the date of the deposit. The balance remaining in the deposit after the first respondent withdrawing the eligible compensation on the basis of aforesaid liability, may be withdrawn by the appellant. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/