IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 MFA.No. 96 of 2010() ------------------------------ WCC.215/2004 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY ---------------------------------------------------- M/S.NATIONAL INSURANCE CO.LTD, AMBIKA ARCADE, M.G.ROAD, THRISSUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/APPLICANT AND OP 1 ---------------------------------------------------------- 1. BIJOY. M.V, S/O.VARGHESE, MOLATH HOUSE, POST MAROTTICHAL, KALLAYIKUNNU, THRISSUR DISTRICT. 2. REJI. V.K, S/O.VARGHESE, KAITHANATH HOUSE, POST, MAROTTICHAL, KALLAYIKUNNU,THRISSUR DISTRICT. BY THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 96 OF 2010 = = = = = = = = = = = = = = = Dated this the 17th day of June, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C. 215/04. The Compensation Commissioner awarded a sum of Rs.43,831/- with 12% from 4.11.03. Challenging the quantum, percentage of loss of earning capacity as well as the liability to pay interest the insurance company has come up in appeal. Since the Compensation Commissioner has not followed the principles to be followed in assessing the loss of earning capacity, I feel the matter has to be remitted back to him for fresh consideration and so I dispense with notice to the other side at the admission stage itself. 2. So far as the interest aspect is concerned the contention of the learned counsel for the insurance company cannot be accepted for the reason that the Division Bench of M.F.A.. 96 OF 2010 -:2:- this Court in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 has considered the Constitution Bench decision of the Hon'ble Supreme Court with a later Division Bench decision of the Apex Court and held that the claimant is entitled to interest at the rate of 12% from the date of accident. This has been followed by another Division Bench of this Court reported in 2009 (1) KLT 825 Harrisons Malayalam Ltd. v. Ashraf and the Himachal Pradesh High Court in the decision reported New India Assurance Company v. Budh Ram and another(2009(4) TAC 614) (HP) had also taken the same view. So there cannot be any interference with the grant of interest. 3. So far as the loss of earning capacity is concerned what the Compensation Commissioner had done is to strike a via-media. The disability certificate issued by the doctor only take into consideration the loss of earning capacity as an auto driver and nothing else. The Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) has held that, M.F.A.. 96 OF 2010 -:3:- “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. 4. Unfortunately the Compensation Commissioner had only considered the loss of earning capacity with respect to the particular work which he was performing. So the said procedure and application of law is incorrect which requires interference. 5. Therefore the order under challenge is set aside and the matter is remitted back to the Compensation Commissioner and he is directed to refer the claimant to a Medical Board to assess the loss of earning capacity as contemplated in 2003 (2) KLT 462(FB) and thereafter M.F.A.. 96 OF 2010 -:4:- permit the parties to adduce evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since I have dispensed with notice before this Court, the Commissioner is directed to send notice to the claimant as well as to the insurance company fixing the date of appearance. M.N. KRISHNAN, JUDGE. ul/-