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. (WCC).No. 163 of 2007() ----------------------------------------- WCC.37/2002 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY ---------------------------------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, OTTAPALAM NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, 'SHARANYA', HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/APPLICANT -------------------------------------- HAMZA, S/O.ISMAIL, NEDIYODATH HOUSE, VADANAMKURUSSI GATE POST, VIA PATTAMBI, OTTAPALAM TALUK. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA. (WCC).No. 163 of 2007 ORDER ON I.A.NO.1994/2007 IN MFA (WCC) NO.163/2007 DISMISSED 09/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- M.F.A.(W.C.C.)No. 163 OF 2007 --------------------------------- Dated this the 9th day of December, 2008 JUDGMENT This appeal is preferred against the order of the Workmen’s Compensation Commissioner, Thrissur in W.C.C.No. 37/2002. The applicant sustained injuries while working as a cleaner in a goods vehicle. A wooden log has fallen on the applicant’s leg resulting in crush injury to his lower right limb. The Workmen's Compensation Commissioner awarded an amount of Rs. 91,164/-. It is against that the Insurance company has filed the appeal. The following are the substantial questions of law arises in this case: 1. Whether The Commissioner is justified in fixing 25% permanent impairment of physical fracture and 2. Whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of accident when the Supreme Court has held that the interest is payable not from the date of accident, but only from the date of adjudication of the claim. 2. The doctor who had issued the discharge certificate was examined as AW2. He had assessed 12% permanent disability and 50% loss of earning capacity. It was reduced to 25% by the M.F.A.No. 163/2007 -2- Commissioner. The disability certificate produced in this case would reveal 12% permanent physical impairment. The doctor had certified that the applicant has neck pain and pains on the limbs. Under 4(1)(c) of the Workmen’s Compensation Act, the compensation has to be assessed on the basis of the loss of earning capacity. How the loss of earning capacity has to be ascertained has been laid down by a full Bench of this court in the decision reported in Vanajakshan v. Joseph [2003 (2) KLT 462]. This court held that: “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the 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. The compensation has to be assessed M.F.A.No. 163/2007 -3- 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. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties” 3. So from the above discussion, this full Bench made it very clear that the loss of earning capacity has to be assessed with respect to the whole work which a person was capable of doing and not the work which he was doing at the time of the accident. The said factum has not been considered by the doctor or by the Commissioner in that angle and therefore it requires reconsideration. So the substantial questions of law deserves consideration. So on that point the award has to be set aside and a direction has to be given to the Workmen’s Compensation Commissioner to issue notice to the claimant and direct him to appear before a medical board and then direct the medical board to assess the loss of earning capacity as envisaged in the decision referred to above. For that purpose the matter has to be M.F.A.No. 163/2007 -4- remanded. 4. The next question is regarding interest. The learned counsel for the Insurance Company would contend before me that the company is only bound to pay the interest from the date of award and not from the date of accident. For that the counsel had also relied upon the decision of the Apex Court reported in National Insurance Company Ltd. v. Mubasir Ahammed & Another [2007 AIR SCW 1265]. This question came up for consideration before a Division Bench of this court in the decision reported in National Insurance company v. Rekha [2007 (4) KLT 386] held that as per the decision of the larger Bench of the Supreme Court in the decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata and another [AIR 1976 SC 222], interest has to be paid from the date of accident. The Division bench also held that when there is a conflict between larger bench decision and another decision, the Larger Bench decision will have to prevail and therefore held that the date of entitlement is from the date of accident. So on that point also the argument of the learned counsel for the Insurance company cannot be accepted. Therefore the appeal is partly allowed and the matter is M.F.A.No. 163/2007 -5- remitted back fo the Workmen’s Compensation Commissioner with a direction to issue notice to the claimant to appear and then send him to the medical board for examination to assess the loss of earning capacity as prescribed in the decision reported in Vanajakshan v. Joseph [2003 (2) KLT 462] and thereafter permit both sides to adduce documentary as well as oral evidence in support of their respective contentions. The Workmen’s Compensation Commissioner shall issue notice to all concerned fixing the date of appearance of parties. The M.F.A is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm