IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 M.F.A.No.1245 of 2002(E) ------------------------------------------------ W.C.CASE NO.118/1997 OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOZHIKODE (ORDER DATED 1.4.2002) .................... APPELLANT: APPLICANT:- -------------------------------------- V.PRABHAKARAN, S/O. VELAYUDHAN, CHEROTT CHALIVAYAL, NADAKAVU P.O., CALICUT BY ADV. SRI.THOMAS ANTONY SRI.K.M.JAMALUDHEEN. RESPONDENTS: OPPOSITE PARTIES:- ------------------------------------------------------- 1. P.UTHAMAN, KOLLERI HOUSE, KIZHIKANDY PARAMBA, NADAKAVU P.O., CALICUT. 2. M/S. THE NEW INDIA ASSURANCE CO. LTD., SILVER PLAZA SHOPPING COMPLEX, THIRD FLOOR, INDIRA GANDHI ROAD, CALICUT-673 004 R2 BY ADV. SRI.RAJAN P.KALIYATH THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, ALONG WITH M.F.A.NO.304 OF 2003-B, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.Krishnan,J. ------------------------------------------------- M.F.A.Nos.1245 of 2002-E & 304 of 2003-B ------------------------------------------------- Dated, this the 30th day of May, 2008 JUDGMENT These appeals are preferred against the award in W.C.Case No.118 of 1997 of the Workmen's Compensation Commissioner, Kozhikode. M.F.A.No.1245 of 2002 is preferred by the claimant and the other by the Insurance Company. The Workmen's Compensation Commissioner fixed the loss of earning capacity at 20%, took the income as Rs.2,000/-, applied the appropriate index and calculated the compensation at Rs.44,856/-. 2. The learned counsel for the claimant would submit that the claimant's loss of earning capacity as a driver is 100% and, therefore, compensation has to be calculated on that basis. On the other hand, the learned counsel for the Insurance Company would contend that the person was referred to a Medical Board, where his permanent disability was assessed at 12% and the Commissioner should have taken into consideration the same. 3. One thing is clear from the materials available that the person had sustained disability on account of the injuries sustained in the accident. The learned counsel for the claimant would submit that since there is evidence to show loss of 100% capacity as a MFA.Nos.1245/02 & 304/03 - 2 - driver, the Commissioner should have accepted the same and pass appropriate orders. The learned counsel for the Insurance Company cited before me the decision of the Full Bench in Vanajakshan v. Joseph [2003 (2) KLT 462], wherein it was held as follows: “A perusal of the Cl(1) of S.2 shows that the disablement has to be considered in the context of the injury incapacitating the workman “for all work” and not for the work for which he was actually employed. The reference is to the work, which the workman “was capable of performing at the time of accident” and not to that which he was actually doing. In other words, the disablement has to be determined with reference to the loss of ability to do any work, which the employee was capable of doing. The compensation is for loss of wages or the earning capacity and not for the physical suffering of pain or the expense on treatment, etc. A cumulative consideration of the provisions contained in Ss.2, 3 and 4 clearly shows that the intention of the Legislature was to compensate the workman for loss of earning capacity and not for the failure to perform the duties of the particular post on which he was actually working. 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 MFA.Nos.1245/02 & 304/03 - 3 - 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. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence adduced by the parties”. So, a reading of the said paragraph would reveal that it is not the disability with respect to the work which he was doing alone need be taken into consideration, but the entire working capacity has to be calculated and percentage of loss of earning capacity has to be arrived at. Unfortunately, the Board has not fixed the working capacity of the claimant, whereas, the Doctor who has examined him, given his professional disability as 20%. Though one doctor had deposed that there is 100% disability towards the job of the driver, with the MFA.Nos.1245/02 & 304/03 - 4 - documents which are available before the Commissioner, one cannot hold that it is acceptable. Further the nature of the injuries sustained by the claimant shows that there is no serious injuries so as to cause 100% disability. It is to be remembered that Exhibit A4, a disability certificate, is produced by the claimant himself to support his case, which shows only 20% disability. Therefore, he cannot be permitted to blow hot and cold. So, taking into consideration this situation, the Commissioner made an evaluation of the evidence and fixed the loss of earning capacity at 20% and awarded the compensation. I feel, it is only just and reasonable. Therefore,I find that both the appeals lack merits and, therefore, dismissed without costs. M.N.Krishnan Judge vku/-