IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 MFA.No. 30 of 2007 --------------------------- WCC.NO.312/2001 OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR. .................... APPELLANT/ 2ND OPPOSITE PARTY: ----------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS/ APPLICANT & IST OPPOSITE PARTY RESPECTIVELY: ----------------------------------------------------------------------------------------------------- 1. VELU @ VELUKUTTY, S/O.PAZHANI, VADAKKEKARA HOUSE, KILLIMANGALAM P.O., THRISSUR DIST. 2. UNNIKRISHNAN, S/O.AYYAPPAN, KAVUMPARAMBIL HOUSE, KILLIMANGALAM P.O., THRISSUR DIST. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.F.A.(WCC).NO.30 OF 2007 (C) & C.M.APPLN.NO.422 OF 2007 ----------------------------------- Dated this the 4th day of June, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company with a delay of 173 days in filing the appeal. The 1st respondent filed an application for compensation. He was employed as a bus driver. During the course of employment, he sustained very serious injuries on 5.2.2001. The injuries is as follows: a. Head injury b. Bone deep injury forehead right side. c. Bone deep injury frontal aspect of scalp. d. Loss of hearing. e. Partial loss of vision. He was under inpatient treatment for more than one month. The disability certificate issued by Dr.V.R.Ramakrishnan, MS M.F.A.(WCC).NO.30 OF 2007 (C) & C.M.APPLN.NO.422 OF 2007 2 ENT DNB. The disability certificate shows as follows: “After the accident he complaints of hard of hearing right ear, rising of sound in right ear, recurrent headache and loss of memory”. On examination there is seurai neural hearing loss in right ear. Latest pure tone audiogram shows moderate seurai neural hearing loss on left ear. He was a bus driver by profession he had to stop driving because of headache, loss of hearing and visual problem. Taking the above disabilities into account, Mr.Velu is assessed to have a loss of earning capacity of only forty five percentage (45%) as a bus driver. Under Section 4 (1) (ii) of the Workmen's Compensation Act, 1923, in case of non scheduled injuries, Commissioner has to assess the loss of earning capacity as assessed by the medical practitioner. Here the medical practitioner assessed 45% loss of earning capacity. Insurance company raised the contention that that disability is only as a bus driver and his earning M.F.A.(WCC).NO.30 OF 2007 (C) & C.M.APPLN.NO.422 OF 2007 3 capacity to the said work alone was considered by the Medical practitioner. In fact that contention was also considered and compensation was awarded for 35% loss of earning capacity even though medical practitioner certified 45% loss of earning capacity. Under Section 4 (1) (ii), Commissioner is bound to accept the assessment of loss of earning capacity by the qualified medical practitioner. Here there is no material to doubt the medical certificate and assessment made by the doctor. Merely because Insurance company's petition for referring to the Medical Board is rejected and appeal will not lie. In fact considering the injuries mentioned as well as the disabilities noticed by the ENT surgeon, we are of the opinion that compensation was calculated by the Commissioner, only 35% loss of earning capacity was taken accepting the contentions of the Insurance company and Insurance company is not aggrieved by the above order. We also note that no satisfactory reasons are stated to condone the long delay in filing the appeal. Hence delay condonation petition is M.F.A.(WCC).NO.30 OF 2007 (C) & C.M.APPLN.NO.422 OF 2007 4 dismissed. Consequently, appeal filed by the Insurance company is also dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008