IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 MFA.No. 14 of 2004() ------------------------------ WCC.203/2001 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY ------------------------------------------------ UNITED INDIA INSURANCE COMPANY LTD., REP.BY ITS MANAGER, 3RD PARTY CELL, VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM KOCHI-16. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: APPLICANT & 1ST RESPONDENT -------------------------------------------------------------------- 1. ABDUL HAKKIM, S/O. KONAN CHETTIYAR, P.O.MAPPILA KOUNTER PUTHOOR, VIA MUTOOR, POLLACHI DISTRICT, PIN 642 005. 2. N.KAMESWARI, W/O. NATARAJAN, 2-A, CMA MILL ROAD, POLLACHI. BY ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 289 OF 2004 IN M.F.A. NO.14 OF 2004 -------------------------------------------- DISMISSED. ID/- J.B. KOSHY, JUDGE. 20.6.2008 ID/- P.N. RAVINDRAN, JUDGE. vsv J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.(W.C.Act)No.14 OF 2004 ------------------------------------- Dated 20th June, 2008 JUDGMENT Koshy,J . This appeal is filed by the insurance company questioning the award of the Commissioner for Workmen's Compensation. Contention of the first respondent/claimant was that while he was working as a cleaner in the lorry bearing registration No.TN-41/C 5757, on 9.12.2000 at 8.30 p.m. the lorry was remaining stationary near Vellapara and while he was checking air in the front tyre of the lorry as per the instructions of the driver, a car came in a most rash and negligent manner and hit him and sped away from the spot without leaving any identify. He applied for compensation. According to him, his monthly wages was Rs.4,000/=. A medical certificate was issued by Dr.Soman assessing 65% loss of earning capacity. Therefore, Commissioner awarded Rs.2,64,326/= with 12% interest. Ext.M1 is the copy of the F.I. Statement taken by the Head Constable who was examined as DW1. As per the statement, it was stated by the claimant that he was working as a cleaner and accident occurred while he was crossing the road for taking tea from a hotel. Even the driver of the lorry was not examined before the Commissioner. Further, we note that there was fracture of fibula and MFA(W.C.Act).14/2004 2 tibia of left leg. It is true that under Workmen's Compensation Act, Commissioner has to assess loss of earning capacity on the basis of the assessment made by a qualified medical practitioner, but, medical practitioner cannot assess loss of earning capacity arbitrarily. Section 4(1)(c)(ii) and Explanation II to Section 4(1)(c)(ii) read as follows: “4. Amount of compensation.- (1) xx xx (c) xx xx xx (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I.- xx xx Explanation II.- In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries in Schedule I;” So, medical practitioner cannot assess loss of earning capacity without considering the injuries specified in Schedule I. Under Schedule I Part II Item No.20-21 for amputation below knee, loss of earning capacity is only 50%. Here, there is only fracture to the fibula and tibia and loss of earning capacity cannot be fixed more than 50%. Merely because the claimant stated that he was engaged as cleaner MFA(W.C.Act).14/2004 3 for 10 days and his monthly income was Rs.4,000/=, Commissioner cannot assume that he was getting Rs.4,000/= which is the maximum amount that can be taken for calculating compensation. We are of the opinion that Commissioner has not considered the matter in its proper perspective and the matter should be remanded to consider the entire evidence and Commissioner has to consider the evidence and pass fresh order. Commissioner also should send the applicant to a Medical Board for assessment of loss of earning capacity with reference to the provisions of the Workmen's Compensation Act. We set aside the impugned order and remand the matter for fresh adjudication. Parties are directed to appear before the Commissioner on 19.8.2008. The appeal is allowed by way of remand. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks