IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 MFA.No. 240 of 2009() -------------------------------- WCC.53/2004 of IN THE COURT OF THECOMMISSIONER FOR WORKMEN'S COMPENSATION(DEPUTY LABOUR COMMISSIONER) ,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., KOCHI, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY MR.MATHEWS JACOB, SENIOR ADVOCATE BY ADV. MR.P.JACOB MATHEW RESPONDENT(S): APPLICANT ------------------------ JAGADEESWARAN, S/O. PALANISAMY, "LAKSHMI NIVAS", K.P.VELLON ROAD, KADAVANTHRA, KOCHI-20. (NO RELIEFS ARE CLAIMED AGAINST IST OPPOSITE PARTY IN THE APPLICATION AND HENCE SHE IS NOT MADE A PARTY IN THIS APPEAL.) R1 BY ADVS.MR.P.V.BABY, MR.A.N.SANTHOSH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN,J. ======================== M.F.A. No.240 OF 2009 ======================== Dated this the 12nd day of March 2010. JUDGMENT This is an appeal preferred against the Workmen's Commissioner, Thrissur in W.C.C. No. 53/2004. The claimant therein sustained injuries in a road accident and has been awarded compensation of Rs.51,122/- with 12% interest from the date of application. It is against that decision the Insurance Company has come up in appeal. 1. Challenging the employer-employee relationship. 2. Challenging the percentage of disability and loss of earning capacity. 3. Regarding the interest. 2. So far as the 1st point is concerned at least there is evidence to show that he was working on that day when the accident occurred under the owner and no other M.F.A. No.240 OF 2009 2 evidence is available to prove that his employment was such a casual nature. Therefore, I do not propose to interfere with the decision rendered on the employer- employee relationship. 3. Next question is regarding the percentage of disability and loss of earning capacity. Time and again I have come across the orders of this Workmen's Compensation Commissioner where without any application of mind when an application for reference to the medical board is made it is summarily dismissed. I am making this reference for the following reasons:- 4. The injuries noted in the order are multiple lacerated wound over the right side of the scalp, lacerated wound in right forearm and abrasion over right scapula. Under ordinary circumstance these injuries are incapable of creating disability unless there are certain other complications developed on account of the injuries sustained. The learned counsel for the respondent produced before me a copy of the disability certificate where M.F.A. No.240 OF 2009 3 I find that the person had oedema. A doctor, at Thrissur who has no occasion to treat him shows the disability after a period of 5 years and that certificate does not show what are the clinical examination or radiological examination conducted by him to find out the disabilities mentioned in his certificate. It was under those circumstances that Insurance Company moved an application for examination by medical board which was out rightly rejected by the Workmen's Compensation Commissioner. However it has to be held that the Workmen's Compensation Commissioner had not followed dictum laid down by this court reported in Vanajakshan V. Joseph, (2003 (2) KLT 462 (FB)) where the Full Bench held that while assessing disability it is the paramount duty to find out the incapacity to do all the work which one was capable of doing and not with respect to a particular work which he was doing. The Workmen's Compensation Commissioner have not followed the said dictum as well. Therefore, this is eminently a fit case where the order has to be set aside, M.F.A. No.240 OF 2009 4 and direct the Workmen's Compensation Commissioner to refer the claim to a medical board for proper examination to find out the disability as well as the loss of earning capacity if any as stipulated in the Full Bench Decision of this Court referred to above. Since the matter is going back, so far as interest is concerned, the Workmen's Compensation Commissioner may decide it in accordance with law. I must also mention that this Court had taken the view that in the light of National Insurance Company Ltd V. Rekha,(2007(4) KLT 386) and also in the light of decision of Supreme Court in Pratap Narain Singh Deo V. Shrinivas Sabata (AIR 1976 SC 222) a decision of the Constitution Bench interest has to be given from the date of the accident. But here the interest is only given from the date of filing of the petition and that is a matter which the Court can decide in accordance with the position of law on that relevant date. The Workmen's Compensation Commissioner is directed to issue notice to the parties for fixing the date of appearance and then proceed to dispose M.F.A. No.240 OF 2009 5 of the matter in accordance with law. Needless to state that the disability has to be fixed with reference to the injuries sustained in the accident. M.N.KRISHNAN,JUDGE. mns