IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 MFA.No. 704 of 2002(E) ------------------------------ WCC.3/2001 OF COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) THRISSUR ...................................... APPELLANT: OPPOSITE PARTY NO.2: ----------------------------------------------------- UNITED INDIA INSURANCE CO.LTD., IRINJALAKUDA, REPRESENTED BY THE ASSISTANT MANAGER THIRD PARTY CLAIMS CELL, UNITED INDIA INSURANCE CO.LTD., VETTUKATTIL BUILDINGS,M.G.ROAD,ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENTS: APPLICANT & OPPOSITE PARTY NO.1: ------------------------------------------------------------------------------- 1. ANTONY, S/O.KOCHU OUSEPH, MENACHERRY HUSE, RESIDING AT MANAKULANGARA DESOM, KODAKARA VILLAGE, MANAKULANGARA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. K.V.SIVARAMAN, S/O.VELAYUDHAN, KALAPURATHARA HOUSE, CHEMBUCHIRA P.O., KODAKARA. BY ADV. SRI.P.V.BABY (COVEATOR) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 4825/2002 IN M.FA. NO. 704/2002 E. DISMISSED 11/03/2008. SD/- J.B.KOSHY, JUDGE. SD/- A.K.BASHEER, JUDGE. True copy tga J.B.KOSHY & A.K.BASHEER, JJ. -------------------------------------- M.F.A.No.704 OF 2002 ------------------------------------- Dated 11th March, 2008 JUDGMENT Koshy,J . This appeal is filed by the insurance company challenging the quantum of compensation awarded by the Commissioner for Workmen's Compensation. First respondent in this appeal met with an accident while driving an autorickshaw during the course of employment and he sustained personal injuries. Apart from other injuries, he lost sight of his left eye. According to the claimant, as an autorickshaw driver he was getting Rs.4,000/= per month. The accident occurred on 4.11.2000. Compensation can be calculated only on the basis of the provisions of the Act as existed on the date of the accident as held by the Supreme Court in K.S.E.B v. Valsala (AIR 1999 SC 3502). Therefore, only Rs.2,000/= can be fixed as the monthly income. Even though first respondent claimant was getting a higher amount as monthly income, Commissioner took only Rs.2,000/= for the purpose of calculation of compensation and considering his age correct factor was also taken for calculating compensation. The only dispute is regarding the percentage of disability. Doctor certified that his permanent disability is 40%, but, loss of earning capacity is fixed at 95%. According to the appellant, the above assessment is incorrect as what was suffered by the claimant is MFA.704/2002 2 loss of one eye without complications and it is a schedule injury. Under item 25 of Schedule I Part II 40% is fixed as the loss of earning capacity and only that can be awarded. According to the claimant, he was working as a driver and he is entitled to compensation as per Schedule I Part I where loss of earning capacity for loss of sight to such an extent as to render the claimant unable to perform any work for which eye-sight is essential is fixed as 100% and therefore, he is entitled to compensation for 100% loss of earning capacity. Doctor (eye specialist) certified that the claimant has no vision in the left eye due to injury and left eye is totally blind. He was examined to prove the certificate. He stated that the claimant cannot drive the vehicle. Both eye sight is essential for driving any sort of vehicle. For renewal of driving licence medical certificate is necessary showing that both eye sights are normal. Here, no such certificate can be issued. A driver with one eye is dangerous and also not permissible. Doctor also stated that there are chances for sympathetic disease to right eye also and disability is permanent. Doctor assessed earning capacity as a driver at 95%. According to the claimant, item No.25 Schedule I Part II deals with loss of one eye without complications, the other being normal. But, according to the doctor, even the other eye will be affected and there is likelihood of infection to the right eye. Claimant was a driver by profession. He was aged 42 at the time of accident. Getting trained for another job is also very difficult at that age. Even MFA.704/2002 3 though loss of eye sight is a schedule injury, it can either come under item No.4 of Schedule I Part I or under item No.25 of Schedule I Part II. In this case, qualified medical practitioner certified that there is 95% loss of earning capacity and he is unable to perform his work as a driver for which sight of both eyes are necessary. As per section 4(1) (c)(ii) of the Workmen's Compensation Act, Commissioner has to assess the loss of earning capacity on the basis of the certificate issued by the qualified medical practitioner and here that was done by the Commissioner. Further, we note that only because of the salary restrictions during that period, a higher monthly income was not taken into account. Considering the fact that he lost sight of left eye which may affect the other eye also and his loss of job and the amount awarded, it is not a fit case where appellate court should interfere in the award. The appeal is dismissed. J.B.KOSHY JUDGE A.K.BASHEER JUDGE tks