IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MFA.No. 109 of 2008() --------------------- WCC.22/2004 of W.C.C.,KOTTAYAM .................... APPELLANT/ OPPOSITE PARTY : --------------------------------- THE MANAGER PERIAVURRAI ESTATE, MUNNAR PO., NOW OWNED BY KANNAN DEVAN HILLS PLANTATIONS COMPANY, PVT.LTD., KDHP HOUSE, KUNNAR-685612. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENT/APPLICANT: ---------------------------- DEVANESAN, NO.3209 PERIAVURRAI ESTATE, MUNNAR PO., ADV. SRI.P.RAMAKRISHNAN FOR R1 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A No. 109 OF 2008 --------------------- Dated this the 3rd day of November, 2008 JUDGMENT This appeal is preferred against the judgment of the Workmen's Compensation Commissioner, Kottayam, in WCC No. 22/04. The applicant before the said Commissioner sustained injuries in an accident and he has been awarded a sum of Rs.4,670/-. The Commissioner of his own had fixed the disability and calculated the compensation. It is the question of law that has been raised in the appeal. Time and again this court has held that it cannot be done by the authorities. Further a Full Bench of this court in the decision reported in Vanajakshan v. Joseph [2003 (2) KLT 463 (FB)] held that the compensation has to be determined with reference to the loss in earning capacity and not the liability 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 loss of earning capacity. The Full Bench further made it clear that loss of earning capacity of a workman should be for all work which he was capable of performing. MFA No.109/08 2 2. Absolutely, the Commissioner has misdirected himself and presumed the percentage of disability and calculated the compensation. It is against the well settled position of law. Therefore the judgment passed by the Commissioner is set aside and the matter is remitted back to the same Commissioner with a direction to refer the applicant to a Medical Board for the purpose of assessing his loss of earning capacity, as envisaged in the decision referred to above. Thereafter, the Commissioner shall permit the parties to adduce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. The Workmen's Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance. M.N.KRISHNAN, JUDGE vps MFA No.109/08 3