IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 MFA.No. 111 of 2008() ----------------------------- WCC.450/2002 of W.C.C., COURT OF COMMISSIONER FOR WORKMEN'S COMPENSATION, DEPUTY LABOUR COMMISSIONER, THRISSUR .................... APPELLANT(S): ----------------------- NATIONAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANT ------------------------------------------- GEORGE.K.E, S/O.INASU, KOCHAPPILLY HOUSE, CHAYPAMKUZHI, KUTTICHIRA VILLAGE, THRISSUR DISTRICT. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 111 of 2008() I.A. NO. 1971 OF 2008 IN M.F.A.NO. 111 OF 2008 DISMISSED. SD/- M.N.KRISHNAN, JUDGE 18.12.2008 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- M.F.A.(W.C.C)No. 111 OF 2008 --------------------------------- Dated this the 18th day of December, 2008 JUDGMENT This is an appeal preferred against the order of the Workmen’s Compensation Commissioner, Thrissur in W.C.C.No. 450/2002. The claimant sustained injuries in an accident while working as unloading worker. The Workmen's Compensation Commissioner found that the percentage of disability for the purpose of loss of earning capacity as 17% and calculated the compensation. There was a medical certificate showing that he had sustained 7% permanent disability and 20% loss of earning capacity. The Insurance Company moved an application for referring the applicant to the Medical Board for examination which was rejected by the tribunal and fixed the disability at 17%. It is against that decision the Insurance Company has come up in appeal. 2. Heard the learned counsel for the appellant. Now it is a settled position of law as per the decision reported in Vanajakshan v. Joseph [2003 (2) KLT 462]. This court held that: “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 M.F.A.(W.C.C) No. 111/2008 -2- 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. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties” So the dictum laid down in that decision would show that the loss of earning capacity has to be assessed with respect to the loss of capacity that has been occasioned to the injured regarding of the whole work he was capable of doing and not the particular work which he was doing at the time of the accident. So the only M.F.A.(W.C.C) No. 111/2008 -3- possibility is now to set aside the award and remit the case back to the Workmen's Compensation Commissioner with a direction to refer the applicant to the Medical Board for assessing the disability in the light of the decision referred to above. Thereafter it shall permit the parties to adduce evidence and dispose of the matter in accordance with law. Workmen's Compensation Commissioner shall issue notice to all the parties fixing the date of appearance. The M.F.A. is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm