IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 MFA.No. 502 of 2002(A) ---------------------- WCC.127/1998 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPP.PARTY: ---------------------------------------------- NATIONAL INSURANCE COMPANY LTD., GURUVAYOOR BRANCH,GURUVAYOOR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT AND OPP.PARTY -1. -------------------------------------------------------------------------- 1. SHAJI ALIAS SHAJAN, S/O.VELAYUDHAN, CHERULIYIL HOUSE,CHAPPARA PULLAT POST, KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. K.N.RADHAKRISHNAN S/O.PARUKUTTIYAMMA, KAKKNAT HOUSE, POST PULLAT,THRISSUR DISTRICT. ADV. SRI.JIJO PAUL FOR R1 SRI.M.R.SABU FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.3027/2002 IN M.F.A.NO.502/2002 DISMISSED 2/07/2008 SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.F.A. No. 502 of 2002 --------------------------------------- Dated this the 2nd day of July, 2008 Judgment Koshy,J. First respondent while driving the bus owned by the second respondent and insured by the appellant insurance company hit against another bus and he sustained severe injuries. He approached the Commissioner for Workmen's Compensation for compensation as the injuries arose during the court of employment. The Commissioner found that the accident was arising out of the employment and compensation was calculated taking Rs.2,000/- as monthly income and 80% as the loss of earning capacity. The amount awarded was Rs.2,01,523/- with 12% interest per annum from the date of filing the application. The contention of the appellant insurance company is that the Commissioner ought not to have granted compensation for 80% loss of of earning capacity. As a result of the accident, he sustained crush injury to the foot. Ext.A2 is thewound certificate which shows that he was initially treated in Modern Hospital, Chalakudy and thereafter in the Heart Hospital, Thrissur. He was an inpatient from 28.5.1996 to 19.6.1996 and M.F.A.No. 502/2002 2 readmitted on 3.8.1996 to 7.8.1996 for removal of K Wire. Ext.A6 disability certificate was issued by Dr.Thomas Mammen, D'Ortho, Orthopaedic Surgeon certifying that there is 30% disability. At the time of examination, he deposed that right hand of the claimant was totally damaged and there is extensive crush injury right foot and loss of earning capacity is 80% and there will be difficulty in driving heavy vehicle. The Commissioner has accepted the same and compensation was granted for 80% disability. Under section 4 (1) (c) (ii) of the Workmen's Compensation Act, compensation for non- schedule injuries has to be assessed as certified by the medical practitioner. But, it is clear from the explanation to the above section that the medical practitioner has to assess the loss of earning capacity on the basis of percentage of loss of earning capacity mentioned in First Schedule and it should be proportionate. Under entry 22, amputation of one foot resulting in end bearing, percentage of loss of earning capacity is 50. Here, there is no amputation. There is crush injury. K wire was put and that was also removed subsequently. Therefore, in any event, compensation should not have been fixed for more than 40% loss of earning capacity in this case. In the above circumstances, compensation M.F.A.No. 502/2002 3 payable will be Rs.2000 x 60 x 209.92 x 40 = Rs.1,00,761.60. 100 100 The above amount is payable to the claimants with 12% interest from the date of accident, that is, 28.5.1996 as provided under section 4-A of the Act till the date of deposit, that is, 15.3.2002. Excess amount, if any, deposited should be refunded to the appellant insurance company and the amount due as stated above should be disbursed to the claimant, if not already disbursed. If excess amount is disbursed, excess amount has to be realised from the claimant. Appeal is allowed partly. J.B.Koshy Judge P.N.Ravindran Judge vaa M.F.A.No. 502/2002 4 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.F.A. No. 502 of 2002 ------------------------------------- Judgment Dated:2nd July, 2008