IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 MFA.No. 603 of 2003() ------------------------------ WCC.105/2001 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY: ---------------------------------------------------- THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, ANGAMALY NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT/ APPLICANT: --------------------------------------- THANKACHAN, S/O. VARGHESE, CHITTOOPARAMBAN HOUSE, MOOKKANNOOR NOW RESIDING AT PAYYAPPILLY HOUSE, KORATTY P.O.,MUKUNDAPURAM TALUK (NO RELIEFS ARE CLAIMED AGAINST THE 1ST OPPOSITE PARTY AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL). BY ADV. SRI.P.V.BABY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, ALONG WITH MFA NO. 630 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO. 603/2003 ORDER ON I.A.1143/2003 IN MFA. NO.603/2003 DISMISSED 30/06/08. SD/- J.B.KOSHY, JUDGE SD/- P.N.RAVINDRAN, JUDGE // TRUE COPY // Rs/ J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------------------------------------- M.F.A.(W.C.Act)Nos.603 & 630 OF 2003 -------------------------------------------------------------- Dated 30th June, 2008 JUDGMENT Koshy,J . The appellant in M.F.A.(W.C.Act)No.630 of 2003, a driver by profession, employed in a jeep insured by the appellant insurance company in M.F.A.(W.C.Act)No.603 of 2003 sustained injuries in a motor accident in 2001. The workman claimed a compensation of Rs.6,07,348/=. Commissioner for Workmen's Compensation awarded an amount of Rs.1,56,175/= with interest. Insurance company filed the appeal contending that quantum of compensation awarded was high. According to the insurance company, Rs.4,000/= fixed as monthly wages and 30% loss of earning capacity fixed are on the wrong side. The claimant (appellant in M.F.A. (W.C.Act) No.630 of 2003) contended that since doctor certified 50% loss of earning capacity, Commissioner ought to have fixed atleast 50% loss of earning capacity and, therefore, compensation awarded is very low. 2. In workmen's compensation cases, compensation has to be assessed as per the provisions of the Workmen's Compensation Act. There is no dispute to the fact that the claimant was a workman MFA(W.C.Act).603 & 630/2003 2 employed and injuries sustained to him during the course of employment and he is entitled to compensation. He was a driver by profession. Fixation of Rs.4,000/= per month as monthly income for a professional driver cannot be stated to be excessive. Being a professional driver, he would have got at least Rs.150/= per day and he would have got minimum 25 days' work. Further, assessment of income is based on evidence and we see no ground to change the same. As a result of the accident, he suffered fracture of fibula and tibia. The doctor certified that he had 15% permanent physical disability and 50% loss of earning capacity. Admittedly, the injury suffered by the workman is not a schedule injury. Section 4(1)(c)(ii) of the Workmen's Compensation Act provides that in case of injuries not covered under the first schedule, Commissioner should assess loss of earning capacity on the basis of the loss of earning capacity assessed by the qualified medical practitioner. Here, the qualified medical practitioner assessed loss of earning capacity at 50% even though physical capacity assessed was only 15%. Explanation II to the above section further provides that medical practitioner can assess loss of earning capacity only considering the loss of earning capacity fixed for the schedule injuries. Commissioner also has seen the claimant. Considering the loss of earning capacity fixed in the first schedule regarding amputation of leg etc. and also considering MFA(W.C.Act).603 & 630/2003 3 the claimant's injuries, Commissioner assessed 30% loss of earning capacity. We see no ground to interfere in the impugned order. Both appeals are dismissed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks