IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 MFA.No. 1383 of 2002(C) ----------------------- WCC.287/2000 OF W.C.C.,THRISSUR. .................... APPELLANT: ------------------ NATIONAL INSURANCE COMPANY LTD., NTC HOUSE, N. MORARJI MARG, MUMBAI, REPRESENTED BY ITS DEPUTY MANAGER, NATIONAL INSURANCE COMPANY, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE. RESPONDENTS: ------------------------ 1. K.S. VELUNNY, S/O. SANKARAN, KONNIPARAMBIL HOUSE, CHEMPOOTHARA, PATTIKAD P.O., TRICHUR DISTRICT. 2. GEEVARGHESE BABY, J.B. ROAD WAYS, AGARWAL CHAMBERS, MP 5, SECTOR 19, VASHIM, NEW MUMBAI. 3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, MARUTHI GALLI, BELGAUM, KARNATAKA STATE. BY ADV. SRI.P.V.CHANDRA MOHAN, SRI.MATHEWS JACOB. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A. No.1383 of 2002 --------------------------------------- Dated this the 15th day of February, 2008 Judgment Koshy,J. First respondent in this appeal sustained injuries during the course of employment and he claimed a compensation of Rs.2,36,472/-. Commissioner for Workmen's Compensation found that the accident arose during the course of employment and he is entitled to compensation and awarded a compensation of Rs.1,54,703/- with interest. Only dispute is regarding the quantum of compensation. 2. Ext.A5 wound certificate shows the following injuries: "1. Closed fracture shaft of lower third of right femur; 2. Compound fracture both bones right leg upper third. Size of the wound 3 x 3 x 3 c.m. 3. Lacerated wound back of left thigh near the kneel joint." Doctor assessed 30% permanent disability and loss of earning capacity at 70%. The disability certificate reads as follows: M.F.A.No. 1383/2002 2 "1. Partial ankylosis of right knee with motion limited from 180o line to 45o flexion. 2. Mal-union of fracture shaft of femur in 10o angulation. 3. Shortening of femur by one inch. 4. Mal-union of fracture tibia upper third in 10o - 15o posterior bowing. 5. Shock and mental strain." The tribunal examined the claimant and found that there was shortening of legs and he can walk only with special shoes and it will be very difficult for him to drive the vehicle. He was a driver by profession. It is a non-schedule injury. Section 4 (1) (c) (ii) of the Workmen's Compensation Act provides that in the case of a non- schedule injury, loss of earning capacity should be fixed on the basis of the certificate of qualified medical practitioner and Explanation II provides that medical practitioner can assess the disability in proportion to the injuries. Here, there is not only fracture tibia, but, he had a fracture of femur also. Loss of earning capacity for the amputation of leg under the Workmen's Compensation Act is 70 to 80%. Here, there was no amputation, but, at the same time, there are serious difficulties and physical disability is different from earning capacity. Considering M.F.A.No. 1383/2002 3 Explanation II, loss of earning capacity has to be assessed in proportion to the earning capacity fixed in first schedule. Considering these difficulties, loss of earning capacity can be only at 50% as per the injuries mentioned in the application. Therefore, compensation payable will be Rs.2000 x 60 x 184.17 x 50 = 100 100 Rs.1,10,502/= with statutory interest as awarded by the commissioner from 27.9.1995 (date of accident) till its deposit, that is, 6.9.2002. If excess amount was deposited, it should be refunded to the insurance company and if any amount is due it should be deposited by the insurance company. Appeal is allowed partly. The direction of refund of Rs.25,000/- to the third respondent insurance company made by the Commissioner is not disturbed. J.B.Koshy Judge K. Hema Judge vaa M.F.A.No. 1383/2002 4 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.F.A. No. 1383 of 2002 ------------------------------------- Judgment Dated:15th February, 2008