IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 MFA.No. 164 of 2009() --------------------- WCC.6/2003 of WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMSSIONER, KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: --------------------------------- THE NATIONAL INSURANCE CO.LTD., KASARAGODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): --------------- 1. RADHAKRISHNA.K., S/O.LATE PUTTOJI RAO, AYARKAD, KOLIKKAJE HOUSE, POST MULLERIA, KASARAGOD. 2. K.JAYARAMA, S/O.SANJEEVA RAO, BOOPA'S COMPOUND, NEAR SREEKRISHNAN THEATRE, KASARAGOD. ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.164 of 2009 ----------------------------------------------- Dated 16th August, 2011. J U D G M E N T Joseph, J. The appellant, the second opposite party in the claim petition, challenges the order passed by the Commissioner for workmen's Compensation. The Commissioner has awarded compensation to the first respondent, on a claim filed by him, under Section 22 of the Workmen's Compensation Act (hereinafter referred to as 'the Act'). 2. The case of the first respondent is that while he was working as a Conductor in a bus, the bus met with an accident, resulting in serious injuries to him. It was accordingly, he filed a claim for compensation. The first opposite party, viz., the employer did not apparently contest the matter. The second opposite party, viz., the insurer contested the matter. It was after considering the matter with reference to the evidence of AW1 and AW2 and Exts.A1 to A9 and Ext.X1, the Commissioner awarded Rs.2,38,899/- with 12% interest from the date of accident till the date of deposit. 3. We heard learned counsel for the appellant and M.F.A.164/09 2 learned counsel for the claimant. 4. Learned counsel for the appellant would essentially raise two contentions before us; firstly, he would contend that there is no evidence for the case of the claimant that he was a Conductor employed in the motor vehicle which was involved in the accident. Apart from the self serving evidence of the claimant as AW1, there is no other evidence, it is submitted. He would contend that for successfully prosecuting a claim under the Act, it is not sufficient that a claimant has sustained some injuries. What is important is that he has sustained injuries while the motor vehicle, in which he was employed as Conductor, met with an accident and otherwise coming within the ambit of the Act and thus, there is a failure on the part of the claimant to prove the case, he contends. Secondly, he would contend that this is a case where, having regard to the injuries sustained, viz., fracture of the right forearm radius along with the elbow joint, the permanent disability, rather the loss of earning capacity fixed at 47% is unsustainable. According to him, in the decision of this M.F.A.164/09 3 Court reported in Vanajakshan v. Joseph [2003 (2) KLT 462 (F.B.)], a Full Bench of this Court held that all the work a workman could do must be borne in mind. He would also submit that going by the second explanation to Section 4(1)(c) of the Act, the medical practitioner must have due regard in a case falling under Section 4(1)(c)(ii) to the loss of earning capacity fixed in the schedule. 5. Per contra, learned counsel for the first respondent would submit that there was evidence for the accident. He would also submit that the compensation awarded was justified, having regard to the facts. 6. The first respondent/claimant was 28 years at the time of accident. He has given evidence about the accident as AW1. AW2 is the doctor who treated him apparently. In his deposition, he would inter alia say that the claimant was brought to him with the report of a road traffic accident. We must remind ourselves that the appellate jurisdiction is hedged in with the condition that it can be exercised only on the existence of a question of law. Appreciation of the evidence M.F.A.164/09 4 may, in circumstances where the findings are perverse, give rise to a question of law. It must also arise, if relevant evidence is totally discarded. In the facts of this case, we are not convinced that either the finding is perverse or that it is rendered disregarding any evidence. We are therefore, of the view that the finding that the claimant was a workman who suffered injuries in the course of his employment as a Conductor and as a result of an accident, cannot be dislodged and we affirm the same. 7. Next, we take up the contention of the learned counsel for the appellant on the basis that the Commissioner has acted illegally when he fixed the loss of earning capacity at 47%. The injury suffered by the claimant is a fracture of the right forearm radius and the elbow joint. The Commissioner has relied on Ext.X1 to come to the conclusion that the applicant has 47% occupational disability. On a perusal of Ext.X1, it can be revealed that it is issued by K.C.H.C. Hospital, Pariyaram. It further reveals that it is issued by the Medical Board. It is stated therein inter alia as follows : “Patient has implants in the M.F.A.164/09 5 base of the right arm. Permanent disability cannot be assessed with the implants. However, with no implants, patient has 47% of temporary deformity, which is both physical and occupational.” In Ext.A6 disability certificate dated 13.8.2002 issued by the City Hospital Research and Diagnostic Centre, it is inter alia stated that on examination on the said day, the fractures have united and he has hardly about 20o of flexion and extension at elbow. These are permanent disability and estimated as 40% of his upper limb function. 8. The accident took place in the year 2002. Ext.A6 certificate which we have adverted to is of the year 2002. It does tend to reveal that the fracture has united, but at the same time, it is stated that there is hardly 20o flexion. But, the learned counsel for the appellant would remind us that the court must have regard to the whole body disability. We further notice that when the applicant was examined by the Medical Board after six years of the accident, he continued to be under implants. No doubt, the Board has come to the conclusion that the temporary deformity is assessed at 47%, i.e., without the M.F.A.164/09 6 implants. We would think that in the circumstances of this case, the interests of justice and the facts as revealed through the documents would support us in our conclusion that the applicant can be reckoned as having 27% of earning capacity. Accordingly, in modification of the order, we direct that the first respondent will be entitled to get Rs.1,37,240/- with interest as already ordered. The amount which is deposited by the appellant in excess of what is ordered can be withdrawn by it. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.