IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 MFA.No. 119 of 2008() ----------------------------- WCC.306/2002 of COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT(S): 2ND OPP.PARTY ------------------------- NATIONAL INSURANCE COMPANY LTD, EAST FORT COMPLEX, CHITTOOR ROAD, PALAKKAD REP BY THE BRANCH MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP1. --------------------------------- 1. BABU, S/O.RAJAN, KOKOODE HOUSE, POST NENMARA, NSS COLLEGE, CHITTOOR TALUK, PALAKKAD DISTRICT ORDINARILY RESIDING AT C/O. U.SUNIL, KOOMBALIL HOUSE, NELLANKARA, NETTISSERY POST, THRISSUR. 2. MRS.JASMINE, D/O.MOHAMMED KUTTY, 2/316, ILLATH PARAMBU, PIRAYIRI, PALAKKAD. R1 BY ADV.SRI.P.K.SAJEEV R2 BY ADV. SRI.RAJESH SIVARAMANKUTTY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2046/2008 IN MFA. NO.119/2008 DISMISSED 31/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 119 OF 2008 = = = = = = = = = = = = = = = Dated this the 31st day of May, 2010. J U D G M E N T This is an appeal preferred against the order of the Deputy Labour Commissioner, Thrissur in W.C.C.306/02. The claimant, an auto driver by profession, sustained injuries when it met with an accident. On account of the accident he had sustained a compound fracture of both bones of the left leg. There was deformity for the left leg. He was initially treated in Abhaya Hospital at Alathur. The permanent disability is assessed at 12% and the loss of earning capacity at 36%. The Compensation Commissioner has calculated 60% of the wage and also calculated the loss of earning capacity and awarded a compensation of Rs.96,107/-. It is against that decision the appeal is preferred by the insurance company. M.F.A.. 119 OF 2008 -:2:- 2. The learned counsel for the insurance company had challenged the accident itself but the Medical reports coupled with the evidence of the applicant indicate a case of a road traffic accident and therefore it has to be held that the claimant had sustained the injuries in a road accident and that finding of fact does not require any interference. 3. The next question to be considered is regarding the compensation. The compensation is assessed on the basis of the loss or earning capacity. The permanent disability was fixed at 12% and loss of earning capacity at 36%. When the insurance company moved an application for referring him to a medical board the Commissioner assessed the loss of earning capacity at 25% and proceed to dispose of the matter. I am afraid that the learned Compensation Commissioner has not followed the principles to be adopted in such cases. 4. This Court in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) has laid down the procedure to be followed in such cases. This Court has reminded again and again that in M.F.A.. 119 OF 2008 -:3:- order to calculate the loss of earning capacity the loss of earning capacity should relate to the entire work which one was capable of doing and not the work which he was doing. Therefore when a matter of this nature arises the loss of earning capacity has to be calculated in that way. But what we find is when an application is filed the Compensation Commissioner just reduces and proceeds to fix the compensation. It is incorrect. Therefore it has become necessary to set aside the award and direct the Compensation Commissioner to refer the person to a Medical Board to assess the loss of earning capacity as contemplated in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) thereafter the parties be permitted to adduce evidence in support of their respective contentions and then the matter be disposed of in accordance with law. 5. Learned counsel for the insurance company had submitted that interest should be awarded only from the date of award and not from the date of accident. This matter has been considered by the Division Bench of this Court M.F.A.. 119 OF 2008 -:4:- reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386. In the said decision the Division Bench has also considered the later rulings of the Hon'ble Supreme Court as well as the Constitution Bench decision of the Supreme Court reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). The Division Bench also considered the question and held that when there is a conflict between the Constitutional Bench decision and a later Division Bench ruling, the Constitution Bench decision will prevail and therefore following the principles laid down in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222) the Court held that the insurance company is liable to pay interest from the date of accident. That decision has also been followed by the Himachal Pradesh High Court in the decision reported in New India Assurance Company v. Budh Ram and another(2009 (4) TAC 614)(HP) which is extracted as follows. ''The Constitutional Bench had already decided the question as to when compensation falls due in terms of the M.F.A.. 119 OF 2008 -:5:- Workmen's Compensation Act, 1923. Unfortunately, this decision of the Constitution Bench was not brought to the notice of the Apex Court while deciding National Insurance Company Ltd. v. Mubasir Ahmed and another, 2007 ACJ 845: 2007(2) TAC 3. Therefore, I feel that this Court is bound by the judgment rendered by the Constitutional Bench of the Apex Court and I accordingly hold that the compensation falls due on the date when the accident takes place and in case the same is not deposited within thirty days, the workman is entitled to claim interest at the rate of 12% per annum without having to show that delay in depositing the compensation was attributable to the employer. While taking this view, I am supported by a Division Bench judgment of the Kerala High Court reported in National Insurance Company Ltd. V. Rekha, 2008 ACJ 886.” Therefore I find the interest granted is proper. M.F.A.. 119 OF 2008 -:6:- In the result the MFA is disposed of by setting aside the order of the Compensation Commissioner and he is directed to refer the claimant to a Medical Board and assess the loss of earning capacity as envisaged in Vanajakshan v. Joseph (2003 (2) KLT 462 and thereafter permit the parties to adduce evidence in support of their respective contentions and then dispose of the matter in accordance with law. The Compensation Commissioner is directed to issue notice to all the parties fixing the date of appearance for a proper disposal of the matter. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.