IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 MFA.No. 88 of 2004() -------------------- WCC.152/1998 of W.C.C.,ERNAKULAM .................... APPELLANT: PETITIONER --------------------- K.M. BAKKER, KALAPPURACKAL THAF MAHAL, DOOR NO.5/99, MODEL ENGINEERING COLLEGE ROAD, THRIKKAKARA P.O., COCHI-21. BY ADV. SRI.P.RAMAKRISHNAN SMT.T.C.KRISHNA RESPONDENT: OPPOSITE PARTY: ---------------------------- KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKKANAD P.O., COCHIN-30, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A. No. 88 OF 2004 --------------------- Dated this the 26th day of May, 2008 JUDGMENT This appeal is preferred against the order of the Workmen's Compensation Commissioner, Ernakulam, in WCC No.152/98. It is the case of the appellant that he had sustained employment injury and claimed compensation. The employers denied the factum of accident itself. But the court below found the disability of the appellant as 5% and awarded compensation. It is against that decision, the present appeal is filed. 2. The question of law mainly canvased before me is regarding the competency of the Workmen's Compensation Commissioner to fix the disability when there is a disability certificate issued by the Board without recourse to any other evidence. A perusal of the award would reveal that according to the worker there has been an employment injury that is in the form of a fracture on the left patella. He was referred to a medical board at the instance of the employer and the medical board, after examination, granted him a certificate showing the permanent partial disability at 25%. It had MACA NO.88/04 2 also held that he was having pain and sufferings on the left knee resulting from the fracture sustained in the left patella. When the matter reached the stage of evidence, it was challenged. Even prior to the same the employer directed the documents to be produced and gave a reply holding that such a disability is not there for the appellant. I am not going elaborately into the materials for the reason that the matter requires reconsideration at the hands of the Workmen's Compensation Commissioner. 3. In the decision reported in New India Assurance Co. Ltd. v. Sreedharan [1995 (1) KLT 275 (FB)] had considered the competency of the Workmen's Compensation Commissioner to assess the disability and held that “ what Sec. 20(3) provides is that the Commissioner may, for the purpose of deciding any matter referred to him for decision under the Act, choose one or more persons possessing special knowledge of any matter relevant to the matter under inquiry to assess him in holding the inquiry. The power is there to Commissioner to refer the workman to any other expert for opinion. Of course, the Commissioner can summon the doctor when there is ambiguity in th certificate as to the loss of earning capacity and examine him. The court held that despite all these powers the MACA NO.88/04 3 Commissioner without having recourse to them can assess compensation on his surmises would be too far fetched. Again a Division Bench of this court relying on the said decision in United India Insurance Co. v. Mohanan [2000 (3) KLT 473] held that Commissioner himself cannot assess the loss of earning capacity. 4. Unfortunately in the case on hand before me, the medical certificate is totally silent about the loss of earning capacity. But there is a mention about the 25% permanent partial disability. A reading of the definition of partial permanent disablement and entitlement under Sec. 4(1) of the Workmen's Compensation Act all would reveal that it is the loss of earning capacity that entitles a workman to get compensation under the Act. It is true that in ordinary cases when there is permanent partial disability it will have a direct bearing on the earning capacity as well. But it is the duty of the authority deciding the matter to find out from the best possible materials regarding the loss of earing capacity and then assess the compensation that a person is entitled to. There is no power left with the Workmen's Compensation Commissioner to assess himself about the loss of earning capacity when there is a medical board certificate clarifying that point. So the matter requires MACA NO.88/04 4 reconsideration and therefore the order under challenge is to be set aside. Therefore, I set aside the order passed by the court below and remand the case back to the Workmen's Compensation Commissioner with a specific direction to assess the loss of earning capacity if any also in the backdrop of the permanent partial disability certificate available before it and permit both parties to adduce evidence in support of their respective contentions or to produce additional documents to supplement their rival contentions and then decide the question of loss of earning capacity if any and revise the order regarding the entitlement of compensation to the claimant. The matter can be disposed of within a time frame of three months from the date of receipt of a copy of the order. The Workmen's Compensation Commissioner shall also issue notice fixing the date of appearance of the parties. M.N.KRISHNAN, JUDGE vps MACA NO.88/04 5 MACA NO.88/04 6 MACA NO.88/04 7