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 8TH JUNE 2009 / 18TH JYAISHTA 1931 MFA.No. 129 of 2006(A) ---------------------- WCC.385/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): SECOND OPPOSITE PARTY: ------------------------------------ THE ORIENTAL INSURANCE CO. LTD., CHALAKUDY, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT/FIRST OPPOSITE PARTY: ---------------------------------------------- 1. JOSE, S/O. LONAPPAN, ELINJIKKADAN HOUSE, MUTHRATHIKKARA, PARAPPOOKKARA, THRISSUR. 2. CICILY JOSE, W/O. JOSE, ELINJIKKADAN HOUSE, PARAPPOOKKARA. BY ADV. SRI.B.JAYASANKAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/06 /2009 , THE COURT ON 08/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. NO: 129 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th Day of June, 2009. JUDGMENT Joseph J. The appeal is filed against the order passed by the Commissioner for Workmen's Compensation on an application filed by the first respondent under Section 22 Workmen Compensation Act (hereafter referred to as “the Act”). The claim was made in respect to an injury suffered by first respondent and the petitioner was directed to deposit an amount of Rs.1,77,747/-. Heard the learned counsel for petitioner, Adv. Shri. George Cherian and learned counsel appearing on behalf of the respondent , Adv. Shri. Jayasankar B. The learned counsel for the appellant would place before us two contentions, firstly, he would submit that the commissioner has acted illegally in taking ---- In the disability certificate, Ext. A15 the permanent disability is shown as 10% while loss of earning capacity is shown as 25%. In Ext.A20 the disability has arrived at 5% and loss of earning capacity has been fixed at 10% and it is complained by the learned counsel for the appellant that the loss of earning capacity has fixed as 35% as total of loss of earning capacity certified in Ext. A15 and Ext.A20. This is impossible and high. Further he points out that the income arrived at Rs.3,000/- on the basis of deposition of the applicant is contrary to Ext. A21, Ration Card, produced by the applicant. As far as the question relating to disability and loss of earning capacity on the basis two distant certificates, we have no reason in saying that its purview exercise on power drawing substantial question of law. The respondent will appear before the medical board, which will assess the loss of earning capacity on basis on disability suffered on account of the injuries and the matter decided on the said basis. Further complaint regarding the fixation of the income, it is complained that there is no Ext.A.21. Partial evidence is made available by the second respondent by placing in testimony of the applicant himself. The review may not be illegal it may not be after consideration of the same also finding was arrived with the case here. Therefore this aspect has to be received contention of the commissioner accordingly we feel the order is set aside and the first respondent will appear before the medical board which will look into the aspect of disability as well as loss of earning capacity and thereafter the matter will be decided with opportunity to the party also as already observed by the commissioner will go in which the question of the income of the liberty to party to adduce the evidence and the date can be fixed. K.M.JOSEPH, JUDGE. M. L. JOSEPH FRANCIS, JUDGE.