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 11TH OCTOBER 2011 / 19TH ASWINA 1933 MFA.No. 108 of 2007(A) ---------------------- WCC.117/2000 of Commissioner for Workmen's Compensation ERNAKULAM .................... APPELLANT(S): 2ND OPPOSITE PARTY: --------------------------------- THE MANAGER, KERALA STATE BEVERAGES CORPORATION, CHOONDY, ALUVA. BY ADV. SRI.MILLU DANDAPANI SRI.ELVIN PETER P.J. SRI.C.S.AJITH PRAKASH,SC,BEVERAGES CORP RESPONDENT(S): APPLICANT AND OPPOSITE PARTIES 1 AND 3: ------------------------------------------------------ 1. M.O.VARGHESE, MUTTANTHOTTIL HOUSE, ERUMATHALA P.O., CHUNANGANVELI, ALUVA. 2. THE MANAGER, KERALA STATE WARE HOUSING CORPORATION, CHOONDY, ALUVA. 3. V.P.RAMACHANDRAN, 8/2191, A.K.ROAD, KOCHI. ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. FOR R2 SRI.V.V.ASOKAN FOR R3 SRI.SUNIL SHANKER FOR R3 SRI.LIFFY P. FRANCIS FOR R1 SRI.E.K.NANDAKUMAR FOR R2 SRI.K.JOHN MATHAI FOR R2 SRI.P.BENNY THOMAS FOR R2 SRI.P.GOPINATH FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. (W.C.C.)No.108 of 2007 ----------------------------------------------- Dated 11th October, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party in a proceeding under Section 22 of the Workmen's Compensation Act. The appellant challenges the order, by which the Commissioner has ordered payment of Rs.1,84,997/- with 12% interest. The case of the applicant was that while he was working as a head-load worker, he got slipped and was thrown away on the floor and sustained injuries. 2. As per Ext.C1 Medical Board Certificate, the applicant has suffered loss of earning capacity at 85% and on that basis, the loss of earning capacity was taken as 85%. Accordingly, Rs.1,84,997/- was directed to be paid as compensation to the applicant. 3. We heard learned counsel for the appellant and the learned counsel for the first respondent/applicant. 4. Learned counsel for the appellant would point out that this is a case where it is true that the Medical Board has certified the loss of earning capacity itself as a head-load MFA 108/07 2 worker. He further points out that in the facts, the workman had been working from November, 2000. Of course, the learned counsel for the first respondent would point out that the order is based on the assessment of the loss of earning capacity by the Medical Board and there is no challenge to the same before the Commissioner. He would further submit that actually, the amount has already been released to the applicant. 5. No doubt, Section 4(1)(c) of the Workmen's Compensation Act is the section in question. It contemplates the loss of earning capacity in respect of all works the workman could do at the time of accident. In this case, the Medical Board Certificate is actually relatable to the loss of earning capacity as a head-load worker. In this case, we must notice that the applicant was working as a head-load worker. He was aged 41 years. We cannot, however, ignore the fact that he is continuing to work since 2000 itself, no doubt, not as a head- load worker, but as a convener of the trade union, according to the applicant. 6. Having regard to all the facts, we feel that we can MFA 108/07 3 safely reduce the loss of earning capacity to 75%. Consequently, the amount due would be Rs.1,63,233/-. The appellant shall be liable to pay only the said amount with interest as ordered, in modification of the order of the Commissioner. 7. If the amount has already been disbursed, as contended by the workman, we further direct that the excess amount, which is paid over to the workman can be recovered from the salary being paid, but it should not exceed 5% of the salary in one month. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.