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 25TH JULY 2011 / 3RD SRAVANA 1933 MFA.No. 211 of 2006 ---------------------------- AGAINST THE ORDER DATED 8.6.2006 OF COMMISSIONER FOR WORKMEN'S COMPENSATION, THRISSUR IN WCC.245/2003 .................... APPELLANT(S): 2ND OPP.PARTY: ------------------------------------------------ NATIONAL INSURANCE COMPANY LTD., KOLLAM DEVASSY SMARAK BUILDING, ROUND EAST, THRISSUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OPP.PARTY.1 & 3: ---------------------------------------------------------------------------- 1. JAYAN C.N., S/O.NARAYANAN, MELACHOOKUNNU KALLERI HOUSE, POST KANNAMBRA, KANNAMBRA VILLAGE, PALAKKAD. 2. THANKACHAN JACOB, S/O. JACOB, KUTTIKKAT HOUSE, POST PAZHUVIL, PIN-680 564. 3. SRI.RAMACHANDRAN, ARAKKAL HOUSE, PADIYAM POST, ANTHIKKAD,THRISSUR. R1 BY ADV. SRI.JIJO PAUL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.211 of 2006-C ----------------------------------------- Dated, this the 25th day of July, 2011 J U D G M E N T K.M.Joseph, J. This appeal is filed against the order passed by the Commissioner for Workmen's Compensation, Thrissur by which the claim application filed by the Ist respondent was allowed and compensation in a sum of Rs.1,68,368/- was ordered with 12% interest. 2. The case of the Ist respondent is that, while he was employed by the 2nd respondent as a cleaner he sustained various injuries. The Commissioner, after finding that the Ist respondent was an employee of the 2nd respondent and there is employer employee relationship assessed permanent disability at 17% and loss of earning capacity as a heavy vehicle driver at 45%. Thereafter, the Commissioner, no doubt, has fixed loss of earning capacity at 35%. 3. The complaint of the appellant is that the above process has been done by the Commissioner after rejecting the application filed for referring the Ist respondent to a Medical MFA (WCC) 211/2006 -2- Board. 4. We heard the learned counsel for the appellant and learned counsel for the respondent. 5. We are of the view that the appellant is justified in impugning the order and that the assessment of loss of earning capacity at 35% is illegal. It is to be noted that the Ist respondent/claimant was actually a cleaner. The Doctor had assessed the permanent disability at 17% and loss of earning capacity as a heavy vehicle driver at 45%. There is no dispute that the Ist respondent was a cleaner and not a heavy vehicle driver. Thereafter, it would appear that working out something like an average between 17% and 45%, 35% is arrived at. Learned counsel for the appellant prays that the matter may be remitted back and the Ist respondent may be referred to a Medical Board. The said request is justified. Accordingly, we allow the appeal, set aside the impugned order and the matter is remitted back for getting the report of the Medical Board. The parties shall appear before the Commissioner for Workmen's compensation on 11.8.2011. On the said day the Commissioner will take up the matter, and thereafter after getting the report MFA (WCC) 211/2006 -3- from the Medical Board proceed to take a decision on the same as per law. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS