IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MFA.No. 164 of 2006() --------------------- WCC.442/2003 of COMMISSIONER FOR WORKMEN COMPENSATION (DEPUTY LABOUR COMMISSIONER),THRISSUR .................... APPELLANT(S): SECOND OPPOSITE PARTY ----------------------------------- THE ORIENTAL INSURANCE CO. LTD., KODUNGALLUR, REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT ------------------------ DEVASSIKUTTY, S/O.ITTIRA, CHATHELI HOUSE, JYOTHI NAGAR, KANNIKKARA DESOM, THAZHEKKAD VILLAGE, KADUPPASSERY.P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.P.V.BABY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.164 of 2006 ----------------------------------------------- Dated 5th August, 2011. J U D G M E N T Joseph, J. The appellant challenged the order passed by the Commissioner for Workmen's Compensation, awarding a sum of Rs.33,067.44(rounded to Rs.33,067/-). 2. We heard learned counsel for the appellant and the learned counsel for the respondent. 3. Learned counsel for the appellant would make two submissions before us; firstly it is contended that the injuries suffered allegedly by the respondent were not on account of the accident. Secondly, it is contended that the accident is alleged to have taken place on 14.8.2003 at 1 p.m., but, the applicant was admitted to the hospital only on 21.8.2003. 4. Learned counsel for the respondent would submit that actually, the applicant had been admitted in a local hospital and after some time, the hospital authorities advised him to be admitted to another hospital and that is how the applicant was admitted to the hospital only on 21.8.2003. MFA 164/06 2 5. The Commissioner has stated that on the basis of the evidence before him, it was proved that the applicant was a driver of the goods vehicle and he sustained injuries while driving the vehicle. We would think that it is a question of fact and we reject the said contention of the appellant. The further question raised by the learned counsel for the appellant is regarding the fixation of loss of earning capacity. Loss of earning capacity is fixed at 10% by the Commissioner. The medical practitioner, who was examined as AW2 has certified the permanent disability at 10% and loss of earning capacity at 20%, as a goods vehicle driver. Thereafter, there was a Medical Board petition. The Commissioner further states that after hearing both sides in detail the loss of earning capacity is reduced and decided as 10% considering all aspects of medical evidence and nature of job. 6. After some debate, learned counsel agree for fixing the loss of earning capacity of the applicant at 8% in place of 10%. Accordingly, the appeal is partly allowed. The respondent/applicant will be entitled to Rs.26,453.95 in place of MFA 164/06 3 Rs.33,067.44, with interest as already awarded. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.