IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 MFA.No. 1179 of 2002() ---------------------- WCC.136/1995 OF WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER,KANNUR. .................... APPELLANT: (APPLICANT): ----------------------------------------- SANTHOSHKUMAR, S/O.P.KRISHNAN NAIR, KANIYADUKKAM, CHANTTANCHAL, P.O. THEKKIL, CHENGALA, KASARAGOD. BY ADV. SRI.A.P.CHANDRASEKHARAN SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: (OPPOSITE PARTIES I & II): ------------------------------------------------------------------ 1. KARICHERY KARUNAKARAN, S/O. SANKARAN NAIR, MANAGAD HOUSE, P.O. BARA, UDMA, KASARAGOD. 2. THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, BANK ROAD, KASARAGOD. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.1179 OF 2002 (D) ----------------------------------- Dated this the 29th day of February, 2008 J U D G M E N T KOSHY,J. Appellant workman met with an accident on 22.11.1993 and suffered serious injuries. Commissioner found that accident occurred during the course of employment and passed an award assessing 60% loss of earning capacity and amount was awarded on the basis of the amended Act by Act 30/1995. The Commissioner based on the medical certificate which assessed percentage of permanent disability at 20% and loss of earning capacity at 60%. By judgment dated 6th April, 1996, this Court remanded the matter as compensation has to be calculated taking into account the provisions of the Act on the date of accident as held by the Supreme Court in K.S.E.B. v. Valsala (1999 (3) KLT 348 (SC)). Further, loss of earning capacity cannot be calculated arbitrarily even by the Doctor. But it must have relation to the loss of earning capacity under MFA.1179/02 2 the Schedule and injury in view of explanation 2 to Section 4 (1) (c) (ii) of the Workmen's Compensation Act, and he has to be examined by the Medical Board for assessment of loss of earning capacity and the earlier award was set aside and remanded. Out of Rs.97,796/- deposited as per the earlier award, Rs.40,000/- was already released to the claimant. Even though appellant received notice for examination from the Medical Board, he applied for time as he was unable to go for examination by the Medical Board on the date fixed for examination. But that was not allowed. In the absence of certificate, Commissioner assessed compensation on the basis of 20% permanent physical disability as certified in the earlier certificate. But we note that in that certificate loss of earning capacity was fixed as 60%. Only because earlier assessment of loss of earning capacity was on the higher side, this Court has remanded the matter. Commissioner ought have granted one more opportunity for sending him to Medical Board for assessing loss of earning capacity as physical disability and loss of earning power are entirely different. Considering the nature of the job of the petitioner, we are of the opinion that MFA.1179/02 3 though there was only 20% physical disability, loss of earning capacity could have been assessed for atleast 30%. Hence, compensation payable will be Rs.1,000 x 50/100 x 30/100 x 226.38 =Rs.33,957/-. If that be so, with interest from the date of accident, that is, 22.11.1993, till deposit, that is, 12.8.1996, total amount will be around Rs.40,000/-. The above amount was already disbursed to him. So, he need not repay any amount. The amount already received is adequate compensation with interest payable to him. Excess amount in deposit should be refunded to the Insurance company forthwith. Award is modified accordingly. This appeal is disposed of accordingly. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.1179 OF 2002 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 29th February, 2008