IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 MFA.No. 136 of 2006() --------------------- WCC.285/1999 of W.C.C.,THRISSUR .................... APPELLANT(S): OPPOSITE PARTY ---------------------------- K.MUHAMMED AMEER, S/O.MOIDEEN HAJI, KARUPPASHAM HOUSE, KOLLUR THAZHAM, PUVATTUPARAMBU.P.O, KOZHIKODE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.SANTHOSH (PODUVAL) RESPONDENT(S): APPLICANT ------------------------ O.S.DAMODHARAN, S/O.SUBRAN, OLUKKOORAN HOUSE, KADAMBODU, P.O.PADY, KODAKARA VIA., THRISSUR. ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.F.A. No.136 of 2006 ------------------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT Basant,J. The employer/opposite party before the Workmen’s Compensation Commissioner is the appellant before us. The respondent herein/workman/claimant had claimed compensation for disability and consequent reduction in earning capacity on account of injury suffered by him in the course of his employment and arising out of such employment. The injuries suffered are not scheduled injuries included in Part I or Part II of Schedule I of the Workmen’s Compensation Act, 1923 (for short `the Act'). The claimant/workman was referred to a medical practitioner who asserted permanent disability to be 70% and the loss of earning capacity to be 100%. Accordingly, the Commissioner proceeded to pass the impugned award directing payment of an amount of M.F.A. No.136 of 2006 -: 2 :- Rs.1,35,560/- along with interest at the rate of 12% per annum. 2. The appellant claims to be aggrieved by the impugned award. What is the grievance? Before us two grievances are raised by the learned counsel for the appellant. 3. First of all, it is contended that though the disability was only 70%, the Tribunal had incorrectly assumed that reduction in earning capacity is 100%. This, it is contended, is incorrect, wrong and opposed to law. Secondly, it is contended that the Commissioner had gone wrong in directing payment of interest at the rate of 12% per annum from the date of the accident. Interest should have been awarded only from the date of the impugned award and not the date of the accident, contends the learned counsel for the appellant. 4. Under the Workmen’s Compensation Act when total disablement has taken place, compensation has to be calculated under Sec.4(1)(b) of the Act. Total disablement results if the claimant/ workman is incapacitated to perform all work which he was capable of performing at the time of the accident. The certificate issued by the Doctor clearly shows that the claimant is unable to perform any work which he was capable of doing at the time of the accident. Before this Court, as per the order dated 18/9/08 another Bench directed that the disability and reduction M.F.A. No.136 of 2006 -: 3 :- in earning capacity of the claimant/workman be assessed by a Medical Board of the Medical College Hospital, Thrissur. A report has been received. That the loss of earning capacity is assessed to be 100% inasmuch as “the claimant/workman is totally dependent for all activities of daily living”. We have no semblance of doubt in our mind, in these circumstances, that the claimant has suffered total permanent disability and his case therefore has to be considered under Sec.4(1)(b) of the Act. The contention that only physical disability of 70% has been suffered by the claimant and hence reckoning the case as one of total permanent disability is not justified cannot be accepted. Under the Act what is relevant is not the extent of physical disability; but reduction in earning capacity. We are satisfied from the materials placed before the Commissioner as also the report received from the Medical Board by this Court that the claimant has suffered total permanent disablement and the extent of physical disability as certified before the Commissioner “70%” cannot be reckoned as the reduction in earning capacity suffered by the claimant. The challenge on the first ground cannot hence succeed. 5. The learned counsel relies on two decisions of the Supreme Court in support of his next contention that interest M.F.A. No.136 of 2006 -: 4 :- should not have been awarded from the date of the accident. He relies on the decision in National Insurance Co. Ltd., v. Mubasir Ahmed (2007 (3) KLT 26 (SC)) as also the later decision in Kamala Chaturvedi v. National Insurance Co. (2008 (4) KLT 862 (SC)) which follows the decision in Mubasir Ahmed (supra). It is contended that the date on which the amount falls due for the purpose of awarding interest under Sec.4A(3) of the Act is not the date of the accident; but the date of adjudication. 6. Two Division Benches of this Court have already considered the impact of the decision in Mubasir Ahmed (supra). In National Insurance Co. Ltd., v. Rekha (2007 (4) KLT 386), a Division Bench of this Court headed by Justice J.B. Koshy after referring to the decision in Mubasir Ahmed and taking note of a previous binding decision of a larger Bench of the Supreme Court has taken the view that interest is liable to be paid from the date of the accident. Similarly, a later Division Bench of this Court in Harrisons Malayalam Ltd., v. Ashraf (2009 (1) KLT 825) headed by Justice K.Balakrishnan Nair has also followed the decision in Rekha (supra) and has held that interest is liable to be paid from the date of the accident. Kamala Chaturvedi (supra) only follows the decision M.F.A. No.136 of 2006 -: 5 :- in Mubasir Ahmed and the fact that the said decision is subsequent to the decision in Rekha or that the said decision is not referred to in Harrisons Malayalam Ltd., (supra) cannot persuade us not to follow the binding precedents of the earlier Division Bench. We are certainly of the opinion that the delay in disposal of a claim pending before the Commissioner cannot operate to the prejudice of the claimant and deprive him of interest which is legitimately due to him from the date on which he has suffered the injury/loss. We must also note that the date of adjudication referred to in Mubasir Ahmed cannot, at any rate, be blindly understood to mean the date of the award as every award must necessarily relate back to the date of the petition also. In any view of the matter, we are not satisfied that the challenge raised on the second ground can be accepted. 7. In the result, this appeal is dismissed. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/ M.F.A. 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