IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 MFA.No. 32 of 2010(D) -------------------- WCC.46/2006 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ----------------------------------------- THE ORIENTAL INSURANCE CO.LTD., METRO PALACE, GROUND FLOOR, OPPOSITE NORTH RAIWAY STATION,ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): 1ST OPPOSITE PARTY AND APPLICANT: ----------------------------------------------------------------- 1. M.M. JOHNSON, S/O.MATHAI, MANKUNNEL HOUSE, MANNAMAGALAM, THRISSUR. 2. REJI. V. GEROGE, S/O.,GEORGE, VATTODAMTHADATHIL HOUSE, P.O.MANNAMANGALAM, THRISSUR. ADV. SRI.V.BINOY RAM FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 32 OF 2010 = = = = = = = = = = = = = = = Dated this the 20th day of July, 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. 46/06. The applicant, a cleaner by profession, sustained injuries in a road accident and the Compensation Commissioner has awarded a compensation of Rs.82,360/-. It is against that decision the insurance company has come up in appeal. 2. Heard both sides. The learned counsel for the insurance company would contend before me that the compensation commissioner committed grievous error when he rejected the application filed by the insurance company to refer the applicant to a Medical Board for assessment of the loss of earning capacity. On the other hand the respondent would contend the doctor who had examined him had issued M.F.A.. 32 OF 2010 -:2:- a disability certificate assessing permanent disability at 18% and loss of earning capacity at 25%. The doctor had been examined as well. The Compensation Commissioner neither accepted the argument of the learned counsel for the applicant nor the insurance company but fixed the percentage of loss of earning capacity at 20% and passed an order. I am afraid that the learned Compensation Commissioner was not correct in doing so because of the Full Bench decision of this Court reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) which had given guidelines in these types of cases. The Court has specifically held that the loss of earning capacity has to be found out considering the whole work one was capable of doing and not a particular work which he was doing. This Court held that, “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 M.F.A.. 32 OF 2010 -:3:- 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. Unfortunately this principle had not been followed and therefore the matter requires reconsideration. It is advisable and direct that let the claimant be referred to a Medical Board to fix the loss of earning capacity in accordance with the principles laid down in the decision cited above and thereafter the parties be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. At any rate 50% of the amount which is deposited be disbursed to the claimant and the balance be in Court deposit till a final decision is taken. The Compensation Commissioner is directed to issue notice fixing the date of appearance of the parties. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-