IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 MFA.No. 96 of 2005() --------------------------- WCC.168/2002 of W.C.COMMISSIONER , KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ----------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS DY.MANAGER,, 3RD PARTY CLAIMS CELL, VETTUKATTIL BUILDING, M.G.ROAD, KOCHI-16. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY RESPECTIVELY ------------------------- 1. RAJAN.P.P., S/O.C.D.PADMANABHA, PUTHENVEETTIL HOUSE, P.O.KODOTH, VIA, ANANDASHARAMAM, KASARAGOD DIST. 2. A.K.V.JAYAKUMAR, S/O.A.K.C.VIJAYAKUMAR, PRASANNA JYOTHI HOUSE, P.O.KANHANGAD, KASARAGOD DIST. ADV. SMT.P.K.PRIYA FOR R2 SRI.T.K.VIPINDAS FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. 1722/2005 IN MFA. NO.96/2005 Dismissed 20.11.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.F.A.No.96 of 2005 - A =============================== Dated this the 20th day of November, 2008. J U D G M E N T KOSHY, J. The Insurance Company has filed this appeal questioning the award whereby the Commissioner has granted compensation for 100% disability for loss of sight of one eye to a workman due to an accidental injury in the course of employment. Only question is whether the Commissioner was right in granting compensation for 100% loss of earning capacity. The workman was employed as a driver in a bus. He sustained injury while supervising repair work of that vehicle. Ext.A3, disability certificate reads as follows: “This is to report that Mr. Rajan P.P. 31 years old male (M.R.No:254892) has very poor vision in the right eye following an injury at his workplace on 1.9.2000. At present he is aphakic in the right eye with glaucomatous optic atrophy. His left eye is normal. His best corrected visual acuity is 6/9 in the right eye with a tubular field (less than 10©) and 6/6 in the left eye. As he is practically one eyed with a visual disability of 30% as described by the uniform definitions for the visually handicapped Appendix III, he may be given due concession as deemed necessary. As he is one eyed with complaints of occasional diplopia he may be posted for light duty other than driving vehicles.” M.F.A.No.96 of 2005 - A 2 2. This certificate shows that the sight of his right eye is not completely lost. His left eye sight is normal. Commissioner awarded compensation for loss of earning capacity of 100% because he is not fit to drive vehicle. A Full Bench of this Court considered identical case where the sight of one eye of a driver was lost, in Vanajakshan v. Joseph (2003 (2) KLT 462) and the Full Bench held that, it being a scheduled injury, compensation can be granted only for 30% loss of earning capacity. It is the contention of the insurance company that injury in this case is a scheduled injury, it cannot even come under item No.26 of schedule, “loss of one eye, without complication the other being normal” and that loss of earning capacity is 30%. Here, even sight of one eye is not lost and the other being normal. Permanent disablement is different from disability. Here, the certificate produced itself shows that he can do other work. In Pratap Narein Singh Deo v. Sreenivas Sabata and Another (AIR 1976 (SC) 222) where left hand of a carpenter was fully amputated, Commissioner held that it is total disablement. The above view was accepted by the High Court and the Supreme Court refused to entertain the appeal. Recently, the Supreme Court followed the above decision, in M.F.A.No.96 of 2005 - A 3 Janardhanan v. United India Insurance Co. Ltd. (2008 (2) KLT 995 SC) where the leg of the driver of a tractor was amputated and disability was calculated as 65% total physical disability. On the facts of that case permanent disablement was not disputed and compensation for 100% loss of earning capacity was awarded. But in this case, the left eye sight was normal and the right eye sight was not completely lost. Accepting the certificate produced by him that the sight of one eye is practically lost and there is only 30 % visual disability, the maximum compensation that can be given is under item 26 of the 1st schedule which provides for compensation for 30% loss of earning capacity. Decision of the Honourable Supreme Court in Pratap Singh's case (supra) was distinguished by the Full Bench. An identical case was considered by the Supreme Court in Amarnath Singh v. Continental Constructions Ltd., New Delhi (2001 (10) SC 760) wherein there was diminution of vision of 80% of one eye. The Supreme Court held that compensation for only 30% loss of earning capacity is payable. Pratap Singh's case (supra) was considered and distinguished on the facts of that case. Therefore, compensation payable to the claimant M.F.A.No.96 of 2005 - A 4 will be 2000 X 60/100 X 209.91 X 30/100 = Rs.75,567.6/- rounded to Rs.75,570/-. In addition to the above, the Tribunal has granted compensation under Section 4(1)(d). Half monthly compensation and payment of compensation for permanent disability are entirely different. Under Section 6 even if half monthly compensation is paid, finally it finds that if there is permanent loss of earning capacity and lump sum is awarded, half monthly compensation already paid has to be deducted. So in addition to the compensation for loss of earning capacity for permanent disability, further amount of half monthly compensation under Section 4(1)(d) cannot be granted. So the compensation payable will be Rs.75,570/- with 12 % interest from the date of application. Only Rs.60,000/- is disbursed to the claimant as per the interim order dated 20.10.2006. The balance amount due to the petitioner with interest at 12% from the date of accident (1.9.2000) till deposit (10.2.2005) should be disbursed to the claimant forthwith. Excess amount in deposit should be refunded to the insurance company. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE bkn/-