IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 MFA.No. 184 of 2010() -------------------------- WCC.468/2003 of W.C.C.,THRISSUR .................... APPELLANT(S)/2ND OPPOSITE PARTY --------------------------------------------- M/S. NATIONAL INSURANCE CO.LTD. KOLLANNUR DEVASSY SMARAK BLDG, THRISSUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S)/APPLICANT AND OP 1. ----------------------------------------------- 1. M.C.GEROGE, S/O.CHAKKUNNI RESIDING AT MUNDAPAL VEETTIL, KOTTAPURAM POST VIA ERUMAPPETTY, THRISSUR DISTRICT. 2. ASHOKAN S.A, S/O.ACHUTHAN, SANKARAPURATH HOUSE, KOTTAPURAM, ERUMAPETTY, THRISSUR DISTRICT. R1 BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N.KRISHNAN, J ===================== MFA No.184 OF 2010 ===================== Dated this the 18th day of October 2010 JUDGMENT This appeal is preferred against the order of the Workmen's Compensation Commissioner, Thrissur in WCC.No.468 of 2003. The applicant claiming to be a workman sustained injuries in a road accident while he was riding a motor cycle through Thrissur-Kunnamkulam road. The Commissioner fixed his income at Rs.3,000/-, took loss of earning capacity at 12% and granted a compensation of Rs.43,070/- with 12% interest. Challenging the employer- employee relationship, the loss of earning capacity and the rate of interest the insurance company has come up in appeal. 2. Heard the learned counsel on both sides. Let me first consider about the employer-employee relationship. This Court has held that a person who is in employment while MFA 184/2010 -:2:- riding the bike of the employer for the purpose of his employment will become an employee and therefore he is attracted under the definition of the workman under the Workmen's Compensation Act. Here, it is a specific case that on behalf of the employer, he was proceeding to the site for the purpose of supervising the work and therefore there exist an employer-employee relationship and I hold that the applicant is an employee under the respondent owner. 3. The next question is regarding the loss of earning capacity. It is true that in the decision reported in Vanajakshan v. Joseph(2003(2) KLT 462), a Full Bench of this Court had held that loss of earning capacity means loss of earning capacity with respect to the entire work one was capable of doing and not in relation to the work which he was doing. But, it is not proceeded in that angle. Loss of earning capacity is certified by the Doctor at 18% and it has been taken at 12% by the Commissioner. Technically the matter can be remanded MFA 184/2010 -:3:- to have scientific precision. But, I find that it will create hardship to all. It is desirable to have an approximate reasonable guess. Therefore, I fix the disability at 8% and calculate the compensation. When the loss of earning capacity is at 8% and income is taken as Rs.3,000/- the compensation would be 3000 x 60 /100 x 199 x 40 x 8/100=28,713.60 which is 28,714/-. So, I hold that the claimant is entitled to a compensation of Rs.28,714/-. 4. Now comes the question of interest. It is contended by the learned counsel for the insurance company that since the quantification is done only at the time of passing of the award, interest shall be paid only from that date and not from the date of accident. In National Insurance Company v. Rekha(2007(4) KLT 386), the Division Bench had considered the Constitution Bench of the Supreme Court and also a later Division Bench decision of the Supreme Court and held that when the Constitution Bench decision remains it has to be applied in the MFA 184/2010 -:4:- decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata & another(AIR 1976 SC 222). The Supreme Court has taken the view that interest shall be paid from the date of accident. Therefore applying that dictum, I hold that the claimant is entitled to get interest at 12%. Subsequently this decision has been followed by a decision of the Himachal Pradesh reported in New India Assurance Company v. Budh Ram and another (2009(4) TAC 614). Therefore I hold that the entitlement of interest is 12%. So from these discussions, the award passed by the Workmen's Compensation Commissioner is modified and it is held that the claimant is entitled to a compensation of Rs.28,714/- with 12% interest from the date of accident, i.e. 22.6.2003 till realisation and the insurance company is directed MFA 184/2010 -:5:- to deposit the said amount. MFA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-