IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MFA.No. 1082 of 1997(B) ----------------------------------- WCC.59/1993 of W ORKMENS COMPENSATION COMMISSIONER,KOLLAM .................... APPELLANT(S): 2ND OPPOSITE PARTY ---------------------- S.JOHN, GOVERNMENT CONTRACTOR, RESIDING AT UDAYA BHAVAN, PADINJATTU KIZHAKKU SOORANADU NORTH. BY ADV. SRI.P.RAMAKRISHNAN SRI.T.C.KRISHNA RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY ------------------------ 1. T.BABU, CHARINJATHUNDIL VEEDU, MUTHUPILAKKAD EAST, MUTHUPILAKKAD P.O., KUNNATHUR TALUK. 2. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, KOLLAM. ADV. SRI.SIBY MATHEW FOR R1 SRI.A.A.MOHAMMED NAZIR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4545/1997 IN MFA. NO.1082/1997 Dismissed 04.12.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.F.A.No.1082 of 1997 - F =============================== Dated this the 4th day of December, 2008. J U D G M E N T KOSHY, J. 1st respondent/claimant sustained serious injuries during the course of employment. He filed an application for compensation before the Commissioner stating that accident occurred during the course of employment under the 2nd respondent who is doing contract work of PWD (Roads Division). Even though employer- employee relationship was denied, as an finding of fact, from the evidence, it was found that the claimant was employed by the 2nd respondent and accident occurred during the course of employment. Medical Board Doctor certified 5% permanent physical disability by Ext.A8 certificate. But Commissioner assessed loss of earning capacity at 15% on the basis of oral evidence given by AW5 Doctor. It is the contention of the appellant that since Medical Board certified only 5% disability, compensation ought to have granted for 5% loss of earning capacity. It is contended by the 1st respondent that the Doctor M.F.A.No.1082 of 1997 - F 2 who was examined as AW5 was a member of the Medical Board which issued Ext.A8 certificate. Physical disability is different from loss of earning capacity. Commissioner relied on the certificate issued by the Medical Board and deposition of AW5. Even though the Medical Board assessed 5% physical disability, one of the members of the Medical Board deposed before the Commissioner that loss of earning capacity is 15%. The entire amount awarded was deposited and withdrawn by the claimant. Since AW5 Doctor, who is a member of the Medical Board which fixed 5% permanent physical disability and assessed loss of earning capacity as 15%, Commissioner fixed loss of earning capacity. In this case, we rely on Section 4(1)(c)(ii) of the Workmen's Compensation Act. We are of the opinion that no interference is required in the award. Hence, we dismiss the appeal. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE bkn/-