IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 MFA.No. 65 of 2009() -------------------- WCC.258/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- THE ORIENTAL INSURANCE CO.LTD., ANGAMALY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): --------------- 1. P.A. BINOY, S/O. ARUJUNAN, PANDIYATH HOUSE, MULLASSERY.P.O, THRISSUR DISTRICT. 2. P.V. MANI, PAZHAMUKKIL HOUSE, AVANOOR.P.O, MUNDUR VIA, MYLADUMKUNNU, THRISSUR DISTRICT. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.833 OF 2009 IN MFA.NO.65 OF 2009 DISMISSED 5.4.2010 SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. cl M.N. KRISHNAN, J. ........................................... M.F.A..No.65 OF 2009 ............................................. Dated this the 5th day of April, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.No.258/2003. The claimant, an auto driver by profession, sustained injuries such as fracture of the right elbow and abrasions on the right hand. The Workmen's Compensation Commissioner awarded him a sum of Rs.54,515/= and directed the insurance company to pay the interest from 13.5.2003. It is against that decision, the insurance company has come up in appeal. 2. Though the applicant is served, he has not entered appearance. The main point argued before me is regarding assessment of the disability compensation. Whether fracture of the elbow would cause 7% permanent disability which will result in 15% loss of earning capacity is the question to be considered. The doctor who had issued it was examined. But, a perusal of the doctor's disability certificate would reveal that it is not done in accordance with the dictum laid : 2 : M.F.A..No.65 OF 2009 down by this Court. In order to find out the loss of earning capacity, the matter came up for consideration before a Full Bench of this Court in the decision reported in Vanajakshan v. Joseph ( 2003 (2) KLT 462. In the said decision, the Full Bench of this Court held that loss of earning capacity is to be assessed not on the basis of a particular work a person was doing, but it should be based on the loss of earning capacity with respect to all the works which one was capable of doing before the accident. It is in that angle the matter has to be looked into. Unfortunately the doctor who issued the disability certificate had only considered the loss of earning capacity on the basis of the fact that he was the driver of a goods auto rickshaw. Therefore the matter requires reconsideration. It is desirable that the applicant is referred to a medical board and a certificate is obtained as per the dictum laid down in the above said decision and thereafter permission be granted to both sides to adduce documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. : 3 : M.F.A..No.65 OF 2009 3. Therefore the order under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner for the purpose mentioned in the previous paragraph. Let the claimant be referred to a medical board and thereafter the parties be permitted to adduce evidence. The Workmen's Compensation Commissioner is directed to fix the date of appearance and issue notice to the parties for their appearance. The amount which is remaining in deposit after the disbursement shall remain in deposit till a final decision is taken in the matter. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.F.A..No.65 OF 2009