IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 MFA.No. 231 of 2009 -------------------------------------- (AGAINST THE ORDER DATED 5.3.2007 IN WCC.221/2004 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR. .................... APPELLANT(S): SECOND OPPOSITE PARTY: ------------------------------------------------------------- NATIONAL INSURANCE CO. LTD., REP. BY THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, THRISSUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP 1 ---------------------------------------------------------- 1. RADHAKRISHNAN, S/O. APPU, KARIMBANAKKAL HOUSE NEDUMBAL, THOTTIPPAL POST. 2. RAMADASAN, S/O. KRISHNANKUTTY, VELUTHANGATH HOUSE, NEDUMPAL, THOTTIPAL, THRISSUR. ADV. SRI.SHEJI P.ABRAHAM FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC).NO. 231 OF 2009 ------------------------------------------ Dated this the 20th October, 2011 JUDGMENT K.M. Joseph, J. Appellant is the second opposite party in proceedings under Section 22 of the Workmen's Compensation Act. It challenges the compensation awarded. The Commissioner has ordered compensation by taking the loss of earning capacity as eighty per cent. This is a case where AW2 is the medical practitioner who has been examined to prove A11 disability certificate issued by the same Doctor. The claimant was working as driver. He, in the accident, suffered the following disabilities: “1) Painful restriction of ( R ) knee movement up to 95” only Crepition present on movement with MFA (WCC).NO.231/2009 2 patella formal arthritis - as per X-ray on 3.4.06. Implants are in situ - Loss 40%. 2) Heel vulgar with forefoot vulgar making the medial border of foot to bear weight causing walking very difficult - Poor stability. 3) ( R ) thigh muscle washing present - comparison not possible due to the involvement of opposite side. 4) ( L ) thigh muscle washing present - ( L ) Ankle movement Gr. II only. No power in Dorsiflex on or Plantar flexion of Ankle ( L ) - stability poor. 5) Loss of sensation on ( L ) foot with Parenthesis in the upper part of ( L ) leg. Permanent disability is assessed as 43%. Loss of earning capacity is assessed as 100%.” 2. The appellant filed an Application to refer the applicant to the Medical Board. Counter Affidavit was filed to the same. After hearing the arguments on the same, the Commissioner fixed the loss of earning capacity at eighty per cent. It is feeling aggrieved by the same that the Appeal is filed. MFA (WCC).NO.231/2009 3 3. We heard the learned counsel for the appellant and also the learned counsel for the claimant. Counsel for appellant would submit that when a petition for referring to the Medical Board was filed, the court below should not have fixed the loss of earning capacity at eighty per cent. Having regard to the nature of the disabilities, it is submitted that the matter may be referred to the Medical Board. Per contra, counsel for the respondent/applicant would submit that the injuries and the disabilities sustained therefrom by the applicant/workman definitely warrant the amount of compensation as awarded. It is pointed out that he cannot even now walk. 4. In this case, the loss of earning capacity is arrived as a driver as such alone. The other vocations he could carry out were not considered. In such circumstances, we fix the loss of earning capacity at sixtyfive per cent. Consequently, the Appeal is partly allowed. We direct the appellant to pay Rs.3,16,337/=in place of the amount already awarded, with interest. The amount lying in MFA (WCC).NO.231/2009 4 deposit in excess of the amount which we have awarded can be withdrawn by the appellant. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy// PS to Judge