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 27TH JUNE 2008 / 6TH ASHADHA 1930 MFA.No. 1216 of 2001(A) ----------------------- WCC.120/1996 of W.C.C.,THRISSUR dated 14/08/2001 .................... APPELLANT: 2ND OPPOSITE PARTY: ------------------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., THRIPRAYAR, P.O.. NATTIKA, THRISSUR DISTRICT, REPRESENTED BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G. ROAD, KOCHI. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: APPLICANT & 1ST OPPOSITE PARTY: -------------------------------------------------------------------------------- 1. WILSON @ WINSON, S/O.BHASKARAN, VALAVATH HOUSE, P.O. PERINJANAM, THRISSUR DISTRICT. 2. T.R.SHAJI, THOTTAPURATH HOUSE, P.O. PERINJANAM, THRISSUR DISTRICT. BY ADV. SRI.P.RAMAKRISHNAN - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.8345/2001 IN M.F.A.NO.1216/2001 DISMISSED 27/07/2008 SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.1216 OF 2001 ---------------------------------------------------- Dated this the 27th day of June, 2008. JUDGMENT Koshy, J: The appellant/insurance company challenges the order of the Workmen's Compensation Commissioner. The dispute is regarding the percentage of loss of earning capacity. According to the appellant, the Commissioner did not fix the loss of earning capacity as required under Section 4(1)(ii) of the Workmen's Compensation Act and that is the question of law raised in this appeal. The claimant was an auto rickshaw driver. During the course of the employment, he sustained the injury. As per the wound certificate, he suffered the following injuries: “1. Fracture lower end of right radius (colles ' fracture) 2. Lacerated wound left thigh 10x5 cms in size. 3. Saphnous vein injury left thigh. 4. Lacerated wound vertex of scalp 4x1x1 cms” The investigation result indicates that the only serious injury was the fracture of colles. The discharge summary also shows MFA.NO.1216/2001 . 2 the same and the fracture was well united. The disability certificate issued by Dr.K. Soman on 8.4.1998, after three years of the accident, shows that many injuries which were not mentioned in the wound certificate and in the discharge certificate. In the disability certificate it is stated that there is 10% permanent disability and loss of earning capacity, as an auto rickshaw driver is 50%. The Commissioner awarded compensation for 50% disability. Even though under Section 4(1)(ii), the Commissioner has to assess the loss of earning capacity in accordance with the certificate issued by the medical practitioner, under explanations 1 and 2, the medical practitioner shall assess the loss of earning capacity taking into account the percentage of disability shown in the 1st schedule. If loss of earning capacity is assessed, it will not be more than 10 to 15% or at the maximum 20%. Of course, being an auto rickshaw driver, he will have some difficulty in long driving of the same. Considering the disability, we have directed the claimant to be examined by a medical board. But, he did not appear in the medical board with records and therefore he was not examined by the medical board. The total amount awarded by the Commissioner was Rs.1,17,974/= with 12% interest from the date of the accident (28.10.1995). The award was passed in the year MFA.NO.1216/2001 . 3 2001. The appellant has deposited Rs.1,92,482/=(the award amount along with interest as on the date of filing of the appeal). When the writ appeal came up for hearing, this Court granted stay with a condition to disburse the amount in excess of Rs.One lakh. In other wards, Rs. One lakh was allowed to be withdrawn by the claimant. Being an auto rickshaw driver, it will be difficult to recover the amount disbursed to him. Considering the facts and circumstances of the case, we fix the amount disbursed to him at the total amount of compensation due to him. In the above circumstances, we are not ordering recovery of the excess amount but balance amount in deposit should be returned to the insurance company forthwith. The appeal is allowed partly. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MFA.NO.1216/2001 . 4 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.1216 OF 2001 JUDGMENT 27th day of June, 2008.