IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 MFA.No. 129 of 2008(F) ----------------------------- W.C.C 38/01 of WORKMEN'S COMPENSATION COMMISSIONER , ERNAKULAM .................... APPELLANT(S)/2ND OPPOSITE PARTY: ------------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LTD. NOW REPRESENED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S)/ APPLICANT & 1ST OPPOSITE PARTY : -------------------------------------------------------------------- 1. RAJEEV A.R., S/O RAJAN, PALLATHU VEEDU, MUPPATHADAM P.O. ALUVA. 2. THE MANAGING DIRECTOR, ALUVA TECHNO ENGINERING PVT. LTD. (CRUMB RUBBER MANUFACTURER), DEVELOPMENT AREA, EDAYAR, MUPPATHADAM P.O., ALUVA.683 110. ADV. SRI.P.RAMAKRISHNAN FOR R1 SRI.C.ANIL KUMAR FOR R1 SRI.T.C.KRISHNA FOR R1 SMT.ASHA K.SHENOY FOR R1 SRI.PRATAP ABRAHAM VARGHESE FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 129 OF 2008 = = = = = = = = = = = = = = = Dated this the 27th day of January, 2009 J U D G M E N T This appeal is preferred against the order of the Workmen's compensation Commissioner, in W.C.C.38/2001. The claimant sustained employment injury and the Court below awarded a compensation of Rs.59,301/- with 12% interest from 27.3.00 to 16.7.07. It is against that decision the insurance company has come up in appeal. 2. Heard the learned counsel for the insurance company as well as the applicant. Learned counsel for the insurance company would contend before me that this is a case where there is only amputation of two fingers which under the schedule to the Workmen's Compensation Act will be 20% disability. The Tribunal has accepted it a 30% and calculated the compensation. Learned counsel for the injured would argue before me over and above the amputation of the two fingers on account of the crush injury further disability has occasioned and that had made the M.A.C.A. 129 OF 2008 -:2:- Tribunal to refer the person to a Medical Board who assessed the disability. He also made available before me the case summary issued by the Specialist hospital, Ernakulam. It can be seen from the said document that there has been a crush injury which has affected fingers 2 to 5 and there has been amputation of two fingers. If there is other disability other than amputation of two fingers which in the process will affect the earning capacity, as contemplated under the Workmen's Compensation Act the claimant will be entitled to get compensation for that percentage of disability. It is desirable that the said matter is proved by examining the doctors who had issued the disability certificate. It is also contended that the contract of insurance company does not affix the liability on the insurance company to pay interest and therefore it cannot be saddled with that liability. It is a contract between employer and the insurance company. At any rate the claimant will be entitled to interest from the employer or insurance company which also can be looked into by perusal of the terms and conditions of the policy. 3. Lastly, the entitlement of interest. A Division Bench of this Court had taken a view that the interest must M.A.C.A. 129 OF 2008 -:3:- be paid from the date of accident. A Division Bench of this Court in the decision reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 considered this question and also held that the decision of the larger Bench will prevail and therefore the entitlement would be from the date of accident. So that point is found in favour of the claimant but the question remains who is liable to pay the interest. Therefore the award under challenge is set aside and the matter is remitted back to the Court below for fresh consideration on the points referred to above after permitting both sides to adduce both documentary as well as oral evidence. Out of the total deposit an amount of Rs.50,000/- be disbursed to the claimant and the balance be in the Court deposit till a final decision is taken on the matter. The Workmen's Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance including the owner for the reason that on the question of interest the junction of the owner is absolutely necessary. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-