IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 MFA.No. 185 of 2009(E) --------------------------------- [WCC.NO.76/2001 OF COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD] .................... APPELLANT/2ND OPPOSITE PARTY: ---------------------------------------------------- UNITED INDIA INSURANCE CO. LTD., OTTAPALAM NOW REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE,'SHARANYA' HOSPITAL ROAD,KOCHI-11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV.SRI.P.JACOB MATHEW. RESPONDENT/ APPLICANT: ---------------------------------------- M.SUBAIR, S/O. YOUSAF HAJI, MANTHAMPURATH HOUSE, KAKKATHIRI, THRITHALA, POST MALA, OTTAPALAM TALUK, PLALAKKAD DISTRICT. BY THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.185/2009-E: ORDER ON I.A. NO. 2051/2009 IN M.F.A. NO. 185/2009-E DISMISSED 17/06/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 185 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of June, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Palakkad in W.C.C. 76/01. The claimant sustained injuries in a road accident while he was driving a jeep bearing Reg.No.KL-9/D- 5580. The accident took place near Khadeeja Manzil at Chalissery on 11.5.98. The present application is filed on 25.11.98. I had perused the records and it is seen that the driver is having a valid driving licence and badge. A perusal of the policy also would reveal that it covers the driver as well. The disability certificate would show that he had sustained a fracture on the tibia and the Commissioner has assessed the loss of earning capacity at 15% and awarded the compensation. The Commissioner also awarded 12% interest. M.F.A.. 185 OF 2009 -:2:- 2. So far as the entitlement is concerned the employer-employee relationship cannot be disputed for the reason that there is a copy of the registration certificate and also the licence to drive and the statements given by the claimant as well as the injured makes it clear that he was driving the jeep at the relevant time. 3. Now the next question is regarding the loss of earning capacity. The Doctor has not been examined in this case to prove the loss of earning capacity. The disability certificate mentioning the loss of earning capacity is marked as Ext.A7 in the case. It would reveal that the applicant who sustained a comminuted fracture on the right tibia, internal fixation was done and according to the doctor there was pain and difficulty while walking and there is some wasting and weakness of the muscle. The doctor has considered his status as a driver and assessed the loss of earning capacity at 15%. Time and again this Court has held that loss or earning capacity has to be assessed on the basis of disability M.F.A.. 185 OF 2009 -:3:- to perform the whole work which one was capable of doing and not the work which he was doing. Therefore taking into consideration that aspect I am inclined to reduce the loss or earning capacity to 10% and calculate the compensation. When it is taken as 10% the entitlement would be Rs.26564.40. 4. So far as the interest is concerned it is true that the application has been filed on 24.5.98. It was dismissed for default on 18.8.00 and that process continued one after the other upto 2006. So really it was on account of the absence of the claimant as well as the counsel the inordinate delay has been caused in disposing of the matter, i.e. from 18.8.00 to 30.6.06. For the said laches the insurance company cannot be saddled with the liability to pay interest and therefore for the period from 18.8.00 to 30.6.06 the interest is not awarded. M.F.A.. 185 OF 2009 -:4:- 5. So far as the entitlement of interest with respect to the claimant is concerned the accident had taken place on 11.5.98 and the application has been filed on 25.11.1998. In the light of the decision reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 wherein following the Constitution Bench decision of the Hon'ble Supreme Court reported in Pratap Narain Singh v. Shrinivas Sabata (AIR 1976 SC 222) it is held that the entitlement of interest is from the date of accident which has also been followed by another Division Bench in the decision reported in 2009 (1) KLT 825 Harrisons Malayalam Ltd. v. Ashraf. Therefore the interest has to be paid from the date of accident as follows. 6. The claimant will be entitled to interest from 11.5.98 to 18.8.00 and from 30.6.06 till the date of deposit. In the result M.F.A. is partly allowed and a revised order is passed as follows. M.F.A.. 185 OF 2009 -:5:- 7. The claimant is awarded a compensation of Rs.26,564/- with 12% interest on the said sum from 11.5.98 to 18.8.00 and from 30.6.06 till the deposit is made. If the amount is already deposited the entitled compensation be disbursed to the complainant and the excess to be reimbursed to the insurance company on appropriate application. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-