IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MFA.No. 177 of 2009() --------------------- WCC.311/2003 of Commissioner for Workmen's Compensation , THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., KUNNAMKULAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT/IST OPPOSITE PARTY ------------------------------------------- 1. K.M.JAIFAR, S/O.MOOSA, KUNNATHUPEEDIKAYIL HOUSE, THAYYUR, THRISSUR DISTRICT. 2. P.A.SOBANAN, POONGHAT HOUSE, ERUMAPETTY, THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2011, ALONG WITH MFA NO.224 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) Nos.177 & 224 of 2009 ----------------------------------------------- Dated 24th October, 2011. J U D G M E N T K.M.Joseph, J. These appeals are connected as they are between parties to the same proceedings. The appellant in M.F.A.177/09 is the second opposite party/insurer. The appellant in M.F.A.224/09 is the claimant. They challenge the same order. By the impugned order, the Commissioner has found that the applicant, who is the appellant in M.F.A.224/09, who was working as an autorikshaw driver, sustained injuries. The loss of earning capacity was taken as 25%. The medical practitioner had assessed the permanent disability as a whole, at 20% and found that the loss of earning capacity as an auto driver is 30%. Thus, the complaint in both the appeals relates to fixation of 25% as the loss of earning capacity. On the one hand, it is contended by the Insurance Company that 25% ought not have been fixed. A medical board petition had been filed. According to them, the matter should have been referred to the Medical Board. Learned counsel for the claimant, on the other hand, would contend that this is a case where the medical practitioner MFA 177 & 224/09 2 has assessed the permanent disability at 20% and having regard to the nature of the injuries and the disability, the loss of earning capacity fixed by the medical practitioner, viz., 30% should have been accepted. 2. After having heard the learned counsel for the parties, we are of the view that in the circumstances of this case, where the loss of earning capacity as an autorikshaw driver was reported by the medical practitioner at 30%, but the Commissioner took it as 25%, having regard to the age of the claimant also, we are not inclined to interfere in either of the appeals. Both the appeals are dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.