IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MFA. (W.C.ACT)No. 75 of 2005() -------------------- WCC.102/2002 of WORKMEN'S COMPENSATION COMMISSIONER, KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY. --------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): APPLICANT AND FIRST OPPOSITE PARTY ------------------------- 1. K.GOPALAKRISHNAN, S/O.LATE RAMA, DHARMA NAGAR HOUSE, VORKADI P.O. SUNKATHAKATTA, VIA MANJESWARAM, KASARAGOD DISTRICT. 2. V.M.SAJITH KUMAR, S/O.V.M.KAMALAKSHAN, HILLSIDE HOUSE, MAJBAIL, MANJESHWARAM, KASARAGOD DISTRICT. ADV. SRI.K.ANAND FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.(W.C.Act) No.75 of 2005 -------------------------------------- Dated this the 25th day of November, 2008. JUDGMENT Koshy, J. The second opposite party - Insurance Company has filed this appeal questioning the quantum of compensation awarded by the Workmen's Compensation Commissioner. First respondent in this appeal sustained serious injuries in a motor accident during the course of employment. Liability of the Insurance Company to pay workmen compensation is admitted. The only dispute is regarding the quantum of compensation. Tribunal awarded compensation for 100% disability. It is the contention of the appellant Insurance Company that since the physical disability certified was 30%, compensation should have been granted only for 30% disability. 2. Now, we will consider the medical certificate issued. First respondent/claimant sustained spinal injury in the accident. Wound certificate would show that the first respondent suffered the following injuries:- “(1) Cord contusion at C3 spinal level with MFA(WC Act) No.75/2005 2 (2) Central cord syndrome and quadinparasis (3) Multiple facial lacerations” He was examined at the District Hospital, Kanhangad by the District Medical Board which consists of five doctors including the Superintendent of Hospital and four other specialists. Certificate reads as follows:- “We the members of District Medical Board do hereby certify that we have carefully examined K.Gopalakrishnan, 60 Yrs, who was involved in a road accident on 17.10.2001. He has right hemiparaesis with sparticity. He has a permanent disability of Thirty percent. He will not be able to drive motor vehicles in future.” (emphasis supplied) Admittedly the injury suffered by him was not a scheduled injury. Physical disability is different from loss of earning capacity. Section 4(2)(c)(ii) of the Workmen's Compensation Act (for short, 'the Act') gives the para metres for assessing compensation for loss of earning capacity in the case of non- scheduled injuries. It reads as follows:- “4. Amount of compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- MFA(WC Act) No.75/2005 3 (c) Where permanent partial disablement result from the injury (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I.- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but no so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.- In assessing the loss of earning capacity for the purpose of sub- clause(ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I;” So the Commissioner is bound to assess the loss of earning capacity as per the medical certificate. The medical certificate shows that he cannot work as driver. Even percentage of loss of earning capacity was not specifically stated. He has MFA(WC Act) No.75/2005 4 to move in a wheel chair due to spastic paralysis. He cannot do any work. He was brought to Lok Adalath. Members of the Adalath Bench consisting of two retired Judges of this Court after seeing the victim on 22.8.2007 observed as follows:- “The victim is present before the Adalath and we find that he is totally disabled. In fact he carries a urine bag with him and wears a spondylosis collar also.” Hence there is permanent total disability. We find no reason to interfere with the assessment of total loss of earning capacity by the Commissioner. In this connection we also refer to the decision of the Apex Court in Janardharan v. United India Insurance Co.Ltd. (2008 (2) KLT 998) and Pratap Narain Singh Deo v. Sriniwas Sabata & another ((1976) 1 SCC 289). 3. The next question is whether the relevant factor taken by the Commissioner is correct. In the application first respondent/claimant has stated that he was aged 55 years. In Ext.A3, wound certificate also it is stated that he was aged 55. Tribunal relied on the same and fixed the age of the claimant as 55. 135.56 was taken by the Commissioner as per IV schedule. We see no ground to interfere with the calculation of compensation made by the Commissioner. However, we find that after granting 100% compensation for loss of earning capacity and awarding interest from the date of accident, Commissioner has also awarded half monthly compensation under Section 4(1) MFA(WC Act) No.75/2005 5 (d) of the Act for temporary disablement for 12 months. That should not have been granted. Even in cases where half monthly payment was given, when compensation for permanent loss of earning capacity is assessed, half monthly payment has to be deducted as provided under Section 6(2) of the Act. Hence the amount of Rs.9,000/- awarded as half monthly payment is to be deducted. That part of the award granting Rs.9,000/- as compensation under Section 4(1) (d) of the Act with proportionate interest is set aside. Hence total compensation payable is only Rs.2,44,008/- with interest as awarded by the Commissioner. Cost ordered to be deposited by the employer is not disputed. From the deposited amount, amount due to the claimant may be disbursed and the excess amount deposited if any, shall be refunded to the appellant. The appeal is allowed in part. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE cks