IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 MFA.No. 167 of 2007 B ----------------------------------- AGAINST THE ORDER DATED 03.03.2007 IN WCC.166/2003 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR. .................... APPELLANT/APPLICANT ---------------------------------- JOSE.M.K, S/O.KURIAN, MANNAMPARAMBIL HOUSE, VETTUKKADU PO, THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): OPPOSITE PARTIES ------------------------------------------------------ 1. MANOJ P.J, S/O.JOSEPH, PAPPODIYIL HOUSE, ASSARIKKAD PO, THRISSUR. 2. UNITED INDIA INSURANCE CO.LTD SIMIS COMPLEX, KURUPPAM ROAD, THRISSUR. ADV. SRI.P.MURALEEDHARAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & A. M. SHAFFIQUE, JJ. ----------------------------------------- M.F.A.(WC).NO.167 OF 2007 B ------------------------------------------ Dated this the 19th December, 2011 JUDGMENT K.M. Joseph, J. Appellant is the applicant in a proceeding under Section 22 of the Workmen's Compensation Act. The application filed by the appellant stands allowed in a sum of Rs.22,602/= with interest at twelve per cent from 13.12.2002 till the date of deposit. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the respondent/insurer. Learned counsel for the appellant would contend that this is a case where the Commissioner acted illegally in reducing the loss of earning capacity from sixteen per cent which was what was assessed by the Medical Practitioner and reducing it to seven per cent. He relies of the decision of the Full Bench of this Court in M.F.A.(WC).NO.167 OF 2007 B 2 New India Assurance Co. Ltd. v. Sreedharan (1995 (1) KLT 275). Learned counsel for the respondent/insurer supports the order. He also points out that it is in consonance with the compensation allowable under the Schedule. The following is the reasoning of the Commissioner: “The above Doctor was present before this authority and examined as AW2 and confirmed disability certificate. The injuries are similar to the injuries stated in Schedule I Workmen's Compensation Act, 1923 Part II, item 35, the whole loss of ring or little finger, the earning capacity is 7%. After hearing the arguments the percentage of Loss of Earning capacity is reduced and decided as 7%.” Ext.A8 is the Disability Certificate issued by AW2. Therein, the following disabilities are noted: “1) Malunited fracture right 5th metacarpal. 2) Stiffness of right 5th metacarpo phalangeal joint. 3) Paraesthesia right little finger. 4) Fixed flexion deformity DIP joint right little finger. M.F.A.(WC).NO.167 OF 2007 B 3 5) Pain right wrist on doing work.” 3. The applicant was engaged as a headload worker. He was 47 years of age. We notice that there is no petition filed by the opposite parties to refer the applicant to a medical board. If he is not referred to the medical board, the Certificate issued by the Medical Practitioner should be accepted. But, at the same time, we have already noticed the reasoning of the Commissioner. However, it is pointed out by the counsel for the appellant that apart from the injuries which were specifically referred to, there are other injuries. 4. Having regard to such circumstances and after hearing the counsel, we fix the loss earning capacity at 11 per cent. On the said basis, the appellant would be entitled to Rs.35,516.646 which is rounded off to Rs.35,517/=. Accordingly, the Appeal is partly allowed. The impugned order is modified and in place of Rs.22,602/=, the appellant will be entitled to Rs.35,517/= with interest as ordered. The amount will be paid by the second M.F.A.(WC).NO.167 OF 2007 B 4 respondent. Time to make the deposit of the additional amount is fixed as two months. Sd/= K.M. JOSEPH, JUDGE Sd/= A. M. SHAFFIQUE, JUDGE kbk. //True Copy// PS to Judge