IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 MFA.No. 1095 of 2001(B) ----------------------- WCC.252/1998 of W.C.C.,THRISSUR .................... APPELLANT: ----------------- NATIONAL INSURANCE COMPANY LIMITED, NOW REPRESWENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB SRI.P.JACOB MATHEW RESPONDENTS: --------------------- ASOKAN P.K., S/O.KUMARAN, PONNAMBARA HOUSE, PURANATTUKARA, P.O.THRISSUR. BY ADV. SRI.BABU CHERUKARA SRI.BABY P. ANTONY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1095 of 2001 ----------------------------------------- Dated this the 31st day of March, 2008 JUDGMENT Koshy, J. First respondent in this appeal sustained injuries during the course of employment. He applied for compensation before the Commissioner for Workmen's Compensation. The Commissioner found that the accident occurred during the course of employment and she was a covered workman as per the policy and awarded Rs.1,47,454/- as compensation for 70% disability. He produced disability certificate assessing permanent disability at 9% and loss of earning capacity at 70%. According to him, he was a heavy vehicle driver. According to the employer, he was a cleaner. In any event, the injury suffered was fracture to the 3rd meta tarsal shaft, fracture to the 4th meta tarsal with loss of shaft and fracture to the neck of the 5th meta tarsal. The above fracture was united. According to the Insurance Company, there is no loss of earning capacity, except the temporary disability till the fracture is united. In any event, physical disability certified was 9%. It is true that as per Section 4(1)(c)(ii), in case of non scheduled injuries, the MFA.1095/01 2 Commissioner should assess the loss of earning capacity as per the certificate of the medical practitioner and the medical practitioner, as per Explanation II, shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. Explanation II to Section 4(1)(c) reads as follows: “Explanation II: In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I.” The Commissioner did not consider Explanation II. We are of opinion that loss of earning capacity certified by the medical practitioner is not correct. The Insurance Company filed an application before the Commissioner to refer the matter to the medical board. That was not accepted. We have referred the matter to the medical board by order dated 26.9.2006 for assessing of disability. The Superintendent of Medical College Hospital, Thrissur informed as per letter dated 8.10.2007 that on the date fixed for medical examination claimant did not come for examination nor he did give an explanation why he was absent. He did not also request for fixing another date. We also note that as per item 24 of schedule I, loss of all toes of one foot through the metatarsophalangeal joint MFA.1095/01 3 is only 20%. Fracture to meta tarsal was united also. In any event, there is no necessity in awarding compensation for 70% of loss of earning capacity. Considering Explanation II stated above, the Tribunal has awarded compensation for 70% of loss of earning capacity relying on the exaggerated medical certificate. Award of compensation for 20% disability itself is on the high side. But we note that at the time of considering the stay petition, this Court has allowed the respondent to withdraw 50% of the award amount. Considering the nature of employment of the workman and injury sustained and considering the fact that he has utilised the amount,we are not ordering recovery of any amount released. But the entire balance amount in deposit shall be returned to the appellant- Insurance Company forthwith. The appeal is allowed to the above extent. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. MFA.1095/01 4 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No. 1095 of 2001 ------------------------------ JUDGMENT 31.3.2008