IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 MFA.No. 85 of 2007() -------------------- WCC.117/2003 of W.C.C.,KOZHIKODE .................... APPELLANT: APPLICANT: ---------------------------------- KUNHIKANNAN, AGED 36 YEARS, S/O.KUMARAN, AMMIYAR CHALIL HOUSE, THOTTILPALAM, P.O.KAVILUMPARA, VIA KUTTIADI, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: OPPOSITE PARTIES: -------------------------------------------------- 1. PAVITHRAN, PARAYULLAPARAMBATH, P.O.KAVILUMPARA, VATAKARA, KOZHIKODE. 2. M/S.NEW INDIA ASSURANCE COMPANY LTD., AL-MUBARAQ BUILDING, EDODI, VADAKARA. ADV. SRI.LAL GEORGE FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 85 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th September, 2011 JUDGMENT K.M. Joseph J., The appellant is the claimant in a proceeding under Section 22 of the Workmen's Compensation Act. He is aggrieved by the quantum of compensation awarded. The Commissioner has taken the wages of the applicant as Rs.3,500/- per month. Further the Commissioner has fixed the loss of earning capacity at 15%. 2. We heard learned counsel for the appellant and learned counsel for the 2nd respondent/insurer. 3. Learned counsel for the appellant pressed two issues before us. Firstly, it is contended that the Commissioner has acted illegally in not taking the monthly income of the appellant as Rs.4,000/-. Next, he would contend that the Commissioner has M.F.A.(W.C.Act) No. 85 of 2007 :2: acted illegally in reducing the loss of earning capacity from 28% to 15%. Having regard to the nature of injuries learned counsel for the respondent would point out that essentially the two issues raised by the appellant do not present any substantial question of law and they do not call for any interference. 4. As far as the wages of the applicant is concerned, it is found that the applicant has not produced any document. Wages of the appellant is taken as Rs.3,500/- per month. The appellant is a driver in a pick-up van. We would think that the finding as to the wages is a question of fact and we cannot fault the Commissioner in this matter. Further question raised is regarding loss of earning capacity. Ext.A9 is the disability certificate issued from the medical practitioner. The medical practitioner was not examined. However, he fixed the loss of earning capacity as 28%. The injuries noted are Gr.III compound fracture left tibia, fracture left tibia, abrasion on the dorsum of the left foot, laceration on the right cheek from right. M.F.A.(W.C.Act) No. 85 of 2007 :3: 5. We would think in the circumstances of this case, we can fix the loss of earning capacity as 20%. 6. Accordingly this appeal is partly allowed. The appellant will be entitled to Rs.82,765/- in place of the amount awarded with interest, as ordered. Sd/- K.M.JOSEPH, (JUDGE) Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/ // TRUE COPY // PA TO JUDGE