IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MFA. [WCC] No.209 of 2006 (B) ---------------------------- WCC.2/2002 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPP. PARTY ----------------------------------- NATIONAL INSURANCE COMPANY LTD., JANATHA JUNCTION, PALARIVATTOM, KOCHI, REP. BY MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT AND OP-1 --------------------------------------------- 1. RAVI, S/O. KUTTAPPAN, PAYAPPILLY HOUSE, PALAPPILLI DESOM, MELOOR VILLAGE, KALIKKAKUNNU POST, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. JOHNSON VARGHESE, ENCHAKKAL HOUSE, NEELESWARAM POST. ADV. SRI.P.V.BABY FOR R1 SRI.P.K.BALAKRISHNAN NAIR FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. F. A [WCC] No.209 of 2006 ------------------------------------------------ Dated this the 24th day of September, 2008 JUDGMENT Koshy, J The first respondent in this appeal sustained serious injuries in a motor accident during the course of employment. He was a Tanker lorry driver and while driving the Tanker lorry the accident occurred. He sustained serious injuries and he claimed compensation before the Commissioner of Workmen's Compensation. Ext.A11 is the disability certificate produced by him wherein the loss of earning capacity is assessed at 40%. The above certificate reads as follows:- “1. Persistent post traumatic head ache. 2. Anosmia. 3. Vertigo. 4. Diplopia. 5. Partial ankylosis of left hip flexion and extension motion limited to an arc from 900 flexion to 1800 line abduction and adduction limited to an arc from M. F. A [WCC] No.209 of 2006 -2- 250 abduction to 150 adduction, rotation motion limited to an arc from 150 internal rotation to 250 external rotation. Functionally he is having difficulty (a) to squatt property (b) to climb up and getting down steps (c) for correct vision (d) to differentiate smell (d) to concentrate.” 2. Another certificate was issued by another specialised Doctor vide Ext.A12 wherein the Doctor certified that first respondent is unable to work as a driver. It reads as follows:- “Traumatic diplopia following RTA, extraocular muscle paresis, a vision of 6/6 partial, right eye and 6/6 left eye and now his corrected vision is 6/6 partial in right eye and 6/6 in left eye and watering and irritation. Because of diplopia he will see objects in double and cannot work as driver.” 3. Questioning these medical certificates appellant/Insurance Company filed application to refer the first respondent to a competent Medical Board. Accordingly, the Medical Board constituted by the Government Medical College Hospital examined the first respondent and M. F. A [WCC] No.209 of 2006 -3- certified that there is 60% loss of earning capacity. He has completed 42 years as per the school certificate. Therefore, compensation was calculated on the basis of the formula mentioned in the Workmen's Compensation Act taking Rs.3,900/- as the monthly income. 4. This appeal is filed by the Insurance Company on two grounds. First ground is that the loss of earning capacity fixed is on the higher side whereas the contention of the claimant is that Doctors certified that in view of the injury sustained he cannot work as a driver and as far as he is concerned, his loss of earning capacity is 100%. It is further submitted that he was 42 years of age at the time of accident and it will be difficult for him to get any other job at this point of time. Therefore, he should have been granted 100% loss of earning capacity. But he M. F. A [WCC] No.209 of 2006 -4- did not file any appeal due to financial constraints. The appellant/Insurance Company filed application for assessing the loss of earning capacity by a competent Medical Board constituted by the Government Medical College, Hospital, Thrissur and at the request of the appellant, he was referred and the Medical Board consisting of specialised Doctors of the Government Medical College Hospital, Thrissur forwarded the certificate assessing loss of earning capacity to this Court. They certified 60% loss of earning capacity. 5. Under Section 4(1)(c)(ii) of the Workmen's Compensation Act, in the case of nonscheduled injuries, the Commissioner is bound to assess the loss of earning capacity as certified by a competent Medical Practitioner. Here, the Medical Board certified 60% loss of earning capacity. In any M. F. A [WCC] No.209 of 2006 -5- event, awarding of compensation for 60% loss of earning capacity based on Medical Board's assessment accepted by the Commissioner cannot be set aside in an appeal proceedings. 6. It is contended that Rs.3,900/- fixed as monthly income is on the higher side. Injured was a Tanker lorry driver. He had a heavy driving licence. It is his case that in 2001 a Tanker lorry driver would get more than Rs.4,000/- per month, but at the time of accident, maximum wages that can be calculated for the purpose of compensation was only Rs.4,000/-. Therefore, he claimed compensation on the basis of monthly wages of Rs.4,000/-. In fact, the Commissioner ought to have fixed Rs.4,000/- as the monthly income. In any event, it cannot be stated that Rs.3,900/- fixed as monthly income for a Tanker Lorry driver in 2001 is excessive. In M. F. A [WCC] No.209 of 2006 -6- these circumstances, we see no ground in the appeal. There is no substantial question of law involved so as to maintain an appeal under Section 30 of the Workmen's Compensation Act. Appeal fails and is dismissed accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-