IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 MFA.No. 188 of 2006() --------------------- WC.139/2000 of W.C.C.,KOZHIKODE .................... APPELLANT/ CLAIMANT ---------------------- T.SIVAPRASAD, S/O.GOVINDAN NAIR, THENJEERI HOUSE, PERINTHALMANNA POST, MALAPPURAM. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENTS/ RESPONDENTS: ------------------------------------ 1. K.MOOSA, S/O.KUNHEEDU, KEZHESHERI HOUSE, KAKKOTH, PERINTHALMANNA POST, MALAPPURAM. 2. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, PEECHI COMPLEX, CALICUT ROAD, PERINTHALMANNA. ADV. SRI.JOHN KOSHY FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A No. 188 OF 2006 --------------------- Dated this the 30th day of October, 2008 JUDGMENT This appeal is preferred against the order of the Workmen's Compensation Commissioner, Kozhikode, in W.C. No.139/00. The applicant before the said Commissioner, who is the appellant before this court, is an auto driver by profession He had sustained injuries in a road accident as a result of which he had suffered fracture of the radius and punctured wound on the wrist and knee. He claimed a compensation of Rs.1 lakh and the Commissioner awarded him Rs.4,892/-. Aggrieved by that decision, the applicant has come up in appeal. 2. Learned counsel for the appellant would strongly contend before me that he had produced a disability certificate which would reveal that the applicant had sustained a disability of 12% loss of earning capacity and therefore the Commissioner should have accepted the same and calculated the compensation. 3. On the contrary, learned counsel for the Insurance Company would contend that the percentage of disability has to be looked into not only on the basis of a particular avocation of a person but with respect to all jobs, which he was capable of doing at the time of the accident. The Commissioner had taken the disability at 2% and calculated the MFA No.188/06 2 compensation. It is true that if strictly the matter has to be adjudicated it has again to be sent back in order to get an appropriate certificate to decide the question. But, this is a case where a person who is an auto driver by profession had sustained a fracture on the right hand. It is his main avocation. For any sort of work a man requires a strong hand. Therefore, the court can atleast presume a reasonable percentage of disability. After consultation with the counsel appearing for the parties, I fix the disability compensation at 5%. If 5% disability is taken into consideration, the amount would come to Rs.12,231/-. Therefore the appeal is disposed of and the Insurance Company is directed the pay Rs.12,231/- with 12% interest on the said sum from the date of accident till realisation. The amount already deposited shall be taken into account debited and the balance amount need be deposited. M.N.KRISHNAN, JUDGE vps MFA No.188/06 3