IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 MFA.No. 42 of 2004(A) ------------------------------ WCC.102/1999 of W.C.C.,ERNAKULAM .................... APPELLANT/2ND OPPO.PARTY. -------------------------- NATIONAL INSURANCE COMPANY LTD. POST TRIPUNITHURA, REP. BY THE MANAGER, REGIONAL OFFICE, KOCHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/ APPLICANT AND OPP.PARTY 1. ----------------------------------------------------------------------- *1. K.R.RAMAKRISHNAN, KIZHAKKUMHCERY HOUSE, NAYARAMBALAM POST. (* DIED) 2. K.K.PARAMESWARAN, KOLLERITHARA HOUSE, NEAR EDAPPALLY CHURCH, EDAPPALLY POST. * IT IS RECORDED, VIDE ORDER DATED 07/11/06, THAT THE FIRST RESPONDENT HAS DIED. ** ADDL. R3 TO R7 ARE IMPLEADED ADDL. R3: MRS. SOUMINI, WIFE OF RAMAKRISHNAN, KIZHAKKAMCHERY HOUSE, NAYARAMBALAM POST ADDL. R4: MR.SUDHEESH, S/O. RAMAKRISHNAN, KIZHAKKAMCHERY HOUSE, NAYARAMBALAM POST. ADDL. R5: MR.SURESH, S/O. RAMAKRISHNABN, KIZHAKKAMCHERY HOUSE, EDAVANAKKAD POST ADDL. R6: MR.SAJEEV, S/O. RAMAKRISHNAN, KIZHAKKAMCHERY HOUSE, NAYARAMBALAM POST ADDL. R7: MR.SABU, S/O.RAMAKRISHNAN, KIZHAKKAMCHERY HOUSE, NAYARAMBALAM POST ** L.R'S OF THE DECEASED FIRST RESPONDENTS ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 7, VIDE ORDER DATED 14/09/2007 ON I.A.1635/2007. BY ADV. SRI.T.O.XAVIER - R1 SRI.A.V.XAVIER - R2 SRI.JOLLY JOHN - R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA. NO.42 OF 2004 ORDER ON I.A. NO. 1129/2004 IN MFA. NO.42/2004 DISMISSED 24/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 42 OF 2004 = = = = = = = = = = = = = = = Dated this the 24th day of July, 2008. J U D G M E N T This appeal is preferred against the order of the Workmen's Compensation Commissioner, Ernakulam in W.C.C.102/99. It is an application filed by the claimant for injuries sustained during the course of employment. The insurance company resisted the claim on the ground that the policy issued is not a workman compensation policy but only a group personal accidental policy. It is also contended that the mode of calculation done by the Commissioner is absolutely erroneous. So far as with respect to the maintainability of the case, a judgment rendered by a Single Judge of this Court in MFA 157/01 is made available for perusal. What has been held in that case is that when it is a group personal accidental policy there is a limit and insurance company cannot be saddled with more liability than what is due under that policy. It is also held by the Court that in such cases if excess amount is ordered it is to be paid by the employer. M.F.A. 42 OF 2004 -:2:- 2. The next question is regarding the mode of assessment. The Compensation Commissioner referred to item No.19 of Part II of schedule-I of the Workmen's Compensation Act which deals with amputation below the middle thigh to below knee and thereafter decided to fix the percentage of disability at 30% and calculated the compensation. It cannot be done so for the reason admittedly the injury sustained by the applicant was a non- scheduled injury and compensation has to be fixed in accordance with Section 4(1)(c) of the Workmen's Compensation Act. A full bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB) held that 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 on a particular job, which was being done by the workman on the relevant time. The compensation has to be assessed on the basis of the percentage of loss of earning capacity ................. If in any given case a workman is able to prove that he was incapable M.F.A. 42 OF 2004 -:3:- of doing any other job, the competent authority shall consider and determine in the light of evidence adduced by the parties. So the matter requires reconsideration in the light of the said decision as well. 3. But, now, everybody is confronted with an unfortunate situation that the person who sustained injuries is no more and he cannot be referred to a Medical Board to assess the loss of earning capacity. Therefore the only method is to evaluate by means of other evidence regarding his percentage of loss of earning capacity. The award passed by the Compensation Commissioner is set aside and it is remitted for the purpose of considering the following questions. (1) Whether the insurance company can be directed to pay the entire amount when it has issued only Ext.B3 policy? (2) The Commissioner shall after hearing all concerned shall determine the limit of liability of the insurance company and it has to direct the Company only to M.F.A. 42 OF 2004 -:4:- that extend to pay the amount. In case excess amount is ordered it has to be ordered to be realised from the employer. The principle enunciated in 2003 (2) KLT 462 may be followed for determining the compensation. For this purpose the parties are permitted to adduce both documentary and oral evidence in support of their contentions. The Workmen's Compensation Commissioner shall issue notice to the parties for appearance and hearing. M.N. KRISHNAN, JUDGE. ul/-