IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MFA.No. 241 of 2009(D) ------------------------------ (AGAINST THE ORDER IN W.C.C.344 OF 2003 OF WORKMEN'S COMPENSATION COMMISSIONER, THRISSUR) ................................... APPELLANT(S): 2ND OPPOSITE PARTY ----------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): APPLICANT AND 1ST OPPOSITE PARTY ------------------------------------------------------------------- 1. PRASANTH E.P., S/O.PRAKASAN, ETTIATHIKUNNEL HOUSE, KUNDUKAD P.O., THRISSUR. 2. K.R.GIRIJAN, KURUPPATHU PARAMBIL HOUSE, KANDAMKUZHY P.O., THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 241 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of November, 2009. J U D G M E N T This appeal is preferred by the insurance company against the award of the Workmen's Compensation Commissioner, Thrissur in W.C.C.344/03. The appeal is admitted on the following substantial questions of law: “(i) Whether the Commissioner is justified in rejecting the application filed by the appellant to assess the correct percentage of loss of earning capacity of the applicant, if any? (ii) Whether the Commissioner is justified in fixing 10% loss of earning capacity when the Doctor has assessed only 6% disability and also without resorting to the schedule under the W.C.Act and (iii) Whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of application or from the date of accident?” M.F.A. 241 OF 2009 -:2:- Points: 2. Heard the learned counsel for the appellant as well as the applicant before the Compensation Commissioner. It is the case of the applicant that while he was loading granite stones in a lorry his leg slipped and he fell down resulting in serious injuries such as a cut injury on the left thumb etc. The Compensation Commissioner has fixed the loss of earning capacity at 10%, income at Rs.3,300/-, fixed the compensation and awarded interest at the rate of 12% from the date of accident. All these points are challenged before this Court. 3. I find in very many cases that the Compensation Commissioner rejected the application when it is filed for referring a person to a Medical Board. They do not accept the disability given by the Doctor and ultimately they reach a conclusion of their on to fix the loss of earnings capacity. I am afraid that the said approach is totally erroneous in the M.F.A. 241 OF 2009 -:3:- light of the large number of decisions rendered by this Court and especially the latest Full Bench decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462). The learned Judges of this court on an exhaustive consideration of the materials held as follows. “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing.” Thereafter only after permitting the parties to adduce M.F.A. 241 OF 2009 -:4:- evidence the compensation has to be fixed. So the loss of earning capacity has to be arrived on the basis of the materials which would show regarding the incapacity of the person to do all the work which he was capable of performing. But it is not in that angle the matter is considered but the Compensation Commissioner jumps to a conclusion and decides it. So it is necessarily to be interfered with. Since the matter is going back the question of interest can also be considered on the basis of the latest decision available on that point at that time. In the result the award under challenge is set aside and the matter is remitted back to the Compensation Commissioner with a direction to refer the person to a Medical Board to assess the loss of earning capacity as contemplated in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462 and then permit the parties to adduce evidence in support of their respective contentions M.F.A. 241 OF 2009 -:5:- and thereafter dispose of the matter in accordance with law including the rate of interest as covered by the decision at that point of time. At any rate 30% of the amount in deposit shall be disbursed to the applicant. The Compensation Commissioner is directed to fix a date of appearance and inform the parties for further proceeding with the matter. M.N. KRISHNAN, JUDGE. ul/-