IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 MFA.No. 17 of 2004() -------------------- WCC.85/2000 of WORKMENS' COMPENSATION(DEPUTY LABOUR COMMISSIONER), KOZHIKODE .................... APPELLANT: APPLICANT ----------------------- ABOOBACKER, S/O.KUTTIALI, KAIPAN KUZHIYIL HOUSE, ULLIYERI AMSOM DESOM, ULLIYERI.P.O., KOZHIKODE. BY ADV. SRI.SANTHARAM.P RESPONDENT(S): OPPOSITE PARTIES ------------------------------- 1. K.P.PRABHAKARAN, PAROLI HOUSE, P.O., CHUNGAPURAM, VATAKARA, KOZHIKODE. 2. M/S.UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, KALLINGAL BUILDING, MAIN ROAD, VATAKARA. ADV. SRI.N.S.MOHAMMED USMAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. ----------------------------------------- M.F.A. No. 17 of 2004 ----------------------------------------- Dated this the 29th day of September, 2008 JUDGMENT Ramachandran Nair .J, The appeal is filed for enhancement of compensation awarded by the Workmen's Compensation Commissioner, Kozhikode for the injuries sustained by the appellant. The counsel for the appellant submitted that there is no justification for the Commissioner to reduce the percentage for loss of earning capacity from 14% certified by the qualified medical practitioner, to 8%. Even though the counsel for the Insurance Company submitted that the appeal is not maintainable as there is no substantial question of law. We are unable to accept this contention, because the question whether the Commissioner has jurisdiction or authority to modify the Medical Certificate issued by a qualified medical practitioner is a question of law. Since the Commissioner has reduced the percentage of disability from 14% to 8% without any basis we vacate this part of the order. We feel that the claim of compensation by taking into account the loss of earning capacity at 14% is just and reasonable under Section 4 of the Workmen's Compensation Act Since the accident occurred on 26.11.1998 , we feel some force in the contention that the income fixed at Rs. 2,000/- is not fair or reasonable. Since the accident happened on 26.11.1998, we estimate the monthly income at Rs. 3,000/-. Consequently the appellant will be entitled to Rs.46,410.84 as against M.F.A. No. 17 of 2004 -2- Rs.17,680/- granted by the Workmen's Compensation Commissioner. The Insurance Company is directed to deposit the additional compensation amount with interest at the statutory rate from the date of application till the date of payment. The appeal stands allowed to that extent. (C.N.RAMACHANDRAN NAIR,JUDGE) (HARUN-UL-RASHID, JUDGE) es. C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------- M.F.A. No. 17 of 2004 ---------------------------- JUDGMENT 29th September, 2008