IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 MFA.No. 445 of 2002(D) ---------------------- WCC.77/1998 of WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT: 2ND OPPOSITE PARTY ----------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS ASST. ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS/APPLICANT & 1ST OPPOSITE PARTY: --------------------------------------------------------- 1. NARAYANAN M., S/O.NARASIMHA BHAT, KADAGA, MARADALA, PUTHUR. 2. M.MOHAMMED AHJI, S/O.P.M.AHAMMAD, CENTRAL WOOD INDUSTRIES, P.O.PALLIKKARA, PERIYA ROAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA No. 445/02 ORDER ON CMP No. 2576/02 IN MFA No.445/02 DISMISSED 27.8.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.F.A. No. 445 OF 2002 --------------------- Dated this the 27th day of August, 2008 JUDGMENT This appeal is preferred by the Insurance Company against the judgment passed by the Workmen's Compensation Commissioner, Kannur, in W.C.C. No.77/98. It is the case of the applicant that he was employed as a cleaner of a lorry owned by the 1st opposite party. While it was proceeding, on account of the rash and negligent driving of the lorry driver the lorry over turned and it resulted in sustainment of injuries to him. The applicant would submit that he was the cleaner of the vehicle which was involved in the accident. The first opposite party did not contest the case and the 2nd opposite party denied everything. It denied the employer- employee relationship, the status of the applicant as a cleaner, the wages and also the injuries sustained by him. Before the Commissioner, AW1 was examined and Exts.A1 to A7 were marked. The Commissioner on an analysis of the claim, reached the conclusion that he was employed as a cleaner by the 1st opposite party in the claim application and held in his favour. The court also found that there was no contra evidence and in spite of searching cross examination nothing was brought out to discredit the evidence of AW1 regarding his employment. The court below also found that disability certificate is issued fixing the percentage of disability MFA No.445/02 2 as well as occupational disability at 15%. The court relied on the factum that there was a malunion of both bones of the right leg and shortening of the right lower limb causing some limbing. The court also accepted the evidence regarding the wages but limited it to Rs.2,000/- as it was the maximum that could be fixed at that time. It is against that decision, the Insurance Company has come up in appeal. The substantial question of law raised are as follows: (1) Has not the Commissioner found that the applicant was a workman under the 1st opposite party and had sustained injuries in the course of his employment, without any evidence in support of the same? (2) Whether Ext.A7 “disability certificate” is sufficient to assess the “loss of earning capacity” in the case of non- scheduled injury? 2. A perusal of the award would reveal that the Workmen's Compensation Commissioner has only acted upon the evidence of AW1. He had clearly deposed before the court below that he was employed by the 1st opposite party and was working as a cleaner in the lorry which got involved in the accident. He also faced a searching cross examination and nothing could be brought out to discredit his evidence. Except for the contention that he was not an employee, the Insurance Company could not adduce any evidence to prove the same. So relying upon the evidence of AW1, the court reached a conclusion that the claimant was the employee under the 1st opposite party. It is not vitiated by any illegality or irregularity and it is an analysis made on the evidence available and therefore it does MFA No.445/02 3 not really involve a substantial question of law to be answered in favour of the appellant herein. 3. The next question is regarding the disability. Admittedly the applicant had a comminuted fracture of both bones of the leg which resulted in malunion as well as shortening. A disability certificate issued by the Doctor would reveal that it was causing pain to the applicant while standing and there was limbing. Occupational disability is assessed at 15%. Considering the nature of the job, I feel the occupational disability assessed cannot be said to be on the higher side. The court has also not gone wrong in fixing the income at Rs.2,000/- and it had only applied an appropriate index and multiplier to arrive at a decision and granted the statutory interest of 12% from the date of accident. It appears to be correct. The appeal lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps MFA No.445/02 4