IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 MFA.No. 230 of 2006(A) ---------------------- WC..97/2005 of W.C.C.,KOZHIKODE .................... APPELLANT(S): APPLICANT --------------------------------------- VAKAPATTA ABDURAHIMAN, S/O.AYAMU HAJI, RESIDING AT NIRANAPARAMBIL VAKAPATTA HOUSE, CHATHANGOTTUPURAM P.O., WANDOOR, VIA. MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): OPPOSITE PARTIES. -------------------------------- 1. K.T.ALI HAJI, S/O.MAMU HAJI, KUNNATHODE HOUSE P.O., KALIKAVU, MALAPPURAM DISTRICT. 2. M/S.UNITED INDIA INSURANCE COMPANY LTD., UP HILL, MALAPPURAM. ADV. SMT.P.A.REZIYA FOR R.2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05.6.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A.NO. 230 OF 2006 A --------------------------------------------------- Dated this the 5th June, 2009 JUDGMENT Joseph, J. This is the second round of litigation arising out of an application filed under Section 22 of the Workmen's Compensation Act, 1923. Appellant was the applicant. Originally, the Commissioner taking the income as Rs.1,800/= per month and the per centage of loss of earning capacity at 80 per cent, awarded a compensation which was challenged by the Insurance Company. This Court by Judgment in MFA No.448/96 dated 7.6.2005 interfered with the matter on two grounds. Firstly, it noted that the Commissioner assessed permanent partial disability at 25 per cent without referring to the consequential loss of earning capacity. It was also held that the Medical Practitioner did not advert to Schedule I in that M.F.A.230/06 A 2 regard. It was also found that the accident had taken place prior to the amendment which came into force on 15.9.1995 and, therefore, the unamended provision will apply. The earlier order was set aside and the matter remanded to the Commissioner who was to obtain Certificate from the Medical Practitioner in terms of Section 4(1)(b)(ii) and Explanation II thereunder. It was accordingly that the Certificate was obtained and the present order came to be passed. 2. We heard the learned counsel for the appellant. Under the impugned order, it is not in dispute that in compliance with the order of this Court in the aforesaid MFA, the Commissioner has correctly adopted Rs.1,000/= as the income. What is in dispute is only the per centage of loss of earning capacity. Earning capacity is assessed at 32%. We note that this is done accepting the per centage fixed by the Medical Practitioner in the Certificate. The Doctor has not been examined. We also M.F.A.230/06 A 3 notice that the Medical Practitioner was not examined. Therefore, going by Ext.A9 Disability Certificate, the per centage fixed at 32% cannot be said to be inadequate. In fact, whatever was fixed as loss of earning capacity has been accepted by the Commissioner. We reiterate that there was no attempt on the part of the appellant to examine the Medical Practitioner, nor was there any attempt to call for any other Report. Now the appellant is called upon to refund the excess amount which he came to withdraw in terms of the earlier order. But, that is the inevitable result of the earlier order being set aside by this Court and the matter being decided in compliance with the Judgment. The appellant, of course, has produced photographs and he would submit that the Certificate was prepared after the appellant had undergone some treatment. But, if that is so, we are not in a position again to ascertain what was the loss of earning capacity without the aid of any Medical M.F.A.230/06 A 4 Certificate. No substantial question of law arises. The Appeal is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge