IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 MFA.No. 120 of 2006() --------------------- WCC.260/2002 of W.C.C.,THRISSUR .................... APPELLANT: SECOND OPPO.PARTY. --------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., CHALAKKUDY, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: APPLICANT/FIRST OPPOSITE PARTY. ------------------------------------------------------------------------------- 1. V.P.RAVI, S/O.PARAMU, VELIYATHUPARAMBIL HOUSE, MOOTHIRAKANNI P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. MARY GEORGE, CHAKKALAMATTATH HOUSE, ANNALLUR P.O. ADV. SRI.P.V.BABY FOR R1 SRI.A.N.SANTHOSH FOR R.2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 120 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of September, 2011 JUDGMENT K.M. Joseph J., The appellant is the second opposite party in a proceeding under Section 22 of the Workman's Compensation Act. The Commissioner has allowed the application in a sum of Rs.82,314/- with 12% interest from 9.5.02 i.e., the date of accident. 2. The applicant was involved in the accident while he was working in a quarry on 9.5.02. Following are the injuries suffered by him: “1.Swelling of right Tendo Achillus and right ankle. 2. Pain and tenderness at the site of cut on right tendo achillus. 3. Mild waisting of right calf muscle. 4. Stiffness of right ankle flexion and extension motion limited to an arc from 1050 angle to 1250 plantar flexion. 5. Loss of grip and loss of toe off. 6. Instability of ankle joint right.” M.F.A. No. 120 of 2006 :2: 3. The medical practitioner who was examined as AW2 assessed permanent disability as 15% and loss of earning capacity as a loading and unloading worker as 30%. The appellant filed an application for referring the matter to the Medical board. A counter was also filed by the claimants. After hearing the parties in detail, the loss of earning capacity was reduced and decided as 25% considering all these aspects of medical evidence and nature of the job, it is stated in the order. The wages of the claimant was taken as Rs.3,300/-. 4. We heard learned counsel for the appellant and learned counsel for the respondents. 5. Learned counsel for the appellant would address as follows. It is submitted that there is no evidence to show that there was employer-employee relationship between the applicant and the first opposite party. Next, it is contended that the date of accident in the F.I.Statement and in the application was shown as 10.5.2002. It is pointed out that it is true that it is subsequently amended as 9.5.2002. Next it is contended that this is a case where the loss of M.F.A. No. 120 of 2006 :3: earning capacity is assessed on the higher side. Further, it is contended that the appellant has filed application for referring the applicant to the Medical Board. With regard to referring the applicant to the Medical Board, it is stated by the Commissioner that the Medical Board petition was heard and it was opposed by filing counter by the claimant. It is further stated that having regard to the nature of job and considering all aspects of medical evidence, the loss of earning capacity is reduced and decided as 25%. Learned counsel would submit that it is to be noted that loss of earning capacity is assessed as loading and unloading worker, which is 30%, which is impermissible. 6. Learned counsel for the second respondent has pointed out that the wages should have been taken as Rs.4,000/-, as at any rate the workman would have got at least Rs.150/- per day at the time of the accident. It is further contended that the finding as to employer- employee relation ship does not give rise to a substantial question of law. The loss of earning capacity of 25% is only to be confirmed. M.F.A. No. 120 of 2006 :4: 7. As regards the date of accident, it is noted that it was mistakenly noted as 10.5.2002. As far as the date of accident is concerned, it may be true that in the claim petition it was mentioned as 10.5.2002 and in the F.I.statement also it was mentioned as 10.5.2002. However the date of accident was corrected as 9.5.2002 by way of amendment. Evidence is given in the proceedings to the effect that the accident took place on 9.5.2002. Ext.A4 discharge summary would show that the date of admission of the applicant to the hospital as 9.5.02. 8. Further contention that there was no employer-employee relationship cannot be countenanced. In a proceeding under Section 30 of the Workmen's Compensation Act, we cannot treat it as a substantial question of law. There is oral evidence of the applicant as AW1. We notice that the second respondent did not dispute that the first respondent was his employee. We reject the appellant's contention on this issue. 9. Further contention relates to assessment of loss of earning capacity at 25%. Medical evidence, no doubt, shows that the M.F.A. No. 120 of 2006 :5: applicant had loss of earning capacity of 30%, but it is assessed as for loading and unloading worker. We notice that the age of the applicant was 46 years at the time of the accident. He was a worker in the quarry. Having regard to all these, we assess the loss of earning capacity as 23%. On the basis of the formula, the appellant will be entitled to Rs.75,728/- instead of Rs.82,314/-. 10. Accordingly this appeal is partly allowed. The appellant will pay a sum of Rs.75,728/- (Rs. Seventy five thousand seven hundred twenty eight only) to the first respondent with interest at 12% from 9.5.2002 till the date of deposit. Any amount lying in deposit after the first respondent withdraws the amount as ordered in this judgment can be withdrawn by the appellant. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/