IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 MFA. (W.C ACT) No. 63 of 2007() --------------------------------------------- W.C.C NO.405/2003 OF W.C.C, THRISSUR ....................... APPELLANT/2ND RESPONDENT ---------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP.BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/APPLICANT & IST RESPONDENT RESPECTIVELY --------------------------------------------------------------------------------------------- 1. JOSHI PAUL.C., CHIRAMMEL HOUSE, WEST BAZAR, ARANATTUKARA P.O., THRISSUR. 2. P.BENNY, CHIRAMMEL HOUSE, ARANATTUKARA P.O., THRISSUR DIST. ADV. SRI.DILIP J. AKKARA FOR R1 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== MFA No.63 OF 2007 ===================== Dated this the 9th day of December 2008 JUDGMENT This appeal is preferred against the order of the Commissioner for Workmen's Compensation, Thrissur in W.C.C.No.405 of 2003. The claimant, a driver by profession sustained injuries in a road accident and the Commissioner has awarded him a total compensation of Rs.46,580/- with liability to pay interest at the rate of 12% from the date of accident. It is against that decision, the insurance company has come up in appeal. 2. The Commissioner had taken note of the permanent disability assessed as 9% and loss of earning capacity as a heavy vehicle driver at 27% , but fixed the loss of earning capacity at 15% and awarded the compensation. It appears to be incorrect in the light of the decision of this Court reported in Vanajakshan v. Joseph(2003(2) KLT 462(FB). This court held that “the compensation has to be determined 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 at the relevant time. The compensation has to be assessed on the basis of the MFA 63/2007 -:2:- 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”.Therefore the matter requires reconsideration. It is advisable that the workman is referred to a medical board with a direction to assess his loss of earning capacity as contemplated in the Full Bench decision referred to above. After assessing the same the parties be permitted to adduce evidence and the amount be recalculated and dispose of the case accordingly. Therefore the order passed by the Commissioner is set aside and the matter is remitted back to the Commissioner with a direction to refer the applicant to a medical board to assess the loss of earning capacity as contemplated by the Full Bench decision of this Court referred to above and thereafter permit the parties to adduce evidence and dispose of the matter in accordance with law. The Commissioner shall issue notice to the parties fixing the date of appearance before the said court. 50% of the amount that MFA 63/2007 -:3:- is deposited be disbursed to the applicant and the balance be kept in deposit until the final disposal of the case. MFA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-