IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 MFA.No. (WCC) NO.93 of 2009 -------------------- WCC.103/2005 of W.C.C., PALAKKAD .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LIMITED, PALAKKAD, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, BYADV. SRI.P.JACOB MATHEW. RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY: -------------------------------------------------------------------------------------- 1. SRI.CHENTHAMARA, S/O.RAJAPETHEREKER, MANEKKELTHODI, VADAKKANTHARA, PALAKKAD. 2. SRI.HARIDASAN, 255, SREERAMAPALAYAM, KARNAKI NAGAR, PALAKKAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1134/2009 IN MFA (WCC) NO.93/2009 DISMISSED 5/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 93 OF 2009 = = = = = = = = = = = = = = = Dated this the 5th day of July, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Palakkad in W.C.C. 103/05. The claimant, a driver by profession, sustained injuries and the Commissioner awarded him a compensation of Rs.49,388/- with 12% interest from the date of accident. I may like to state that the Commissioner has not considered the case in the correct perspective to arrive at a decision. It has to be remembered that Workmen's Compensation Act only envisages a situation were there is loss of earning capacity. Even going by the order it can be seen only a certificate showing the partial disability is issued. It is also to be stated that material documents like wound certificate etc. are not seen produced before Court. Further loss of earning capacity has to be calculated on the basis of the dictum laid down by a Full Bench decision reported in Vanajakshan v. Joseph (2003 M.F.A. 93 OF 2009 -:2:- (2) KLT 462(FB) where this Court considered the question meticulously and held that loss of earning capacity has to be calculated on the basis of the incapacity to do the whole work which one was capable of doing and not the work which he was doing. Therefore the approach should be in that angle. Similarly it is seen that it is the Tuberculosis specialist who had issued disability certificate. Even the doctor is not examined. Therefore the Compensation Commissioner has not proceeded in accordance with law. Similarly if a person files a petition before the Motor Accidents Claims Tribunal and then on his whims and fancy withdraws then files a petition before the Workman's Compensation Commissioner after a few years, then the insurance company shall not be saddled with the liability to pay interest for the laches on the part of the claimant. It is a matter that has also to be looked into. Therefore the matter requires fresh consideration by directing the claimant to produce necessary documentary evidence and then refer him to a medical board which is competent to assess the loss of earning capacity and then permit the parties to adduce evidence and dispose of the M.F.A. 93 OF 2009 -:3:- matter in accordance with law. Whether there has been delay by the claimant which had necessitated the insurance company to pay interest also has to be gone into. 2. Therefore the order under challenge is set aside and the matter is remitted back to the Compensation Commissioner with a direction to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and by referring the person to a competent medical board to assess the loss of earning capacity and then dispose of the matter in accordance with law. Since the applicant has not chosen to appear before this Court let notice be issued by the Compensation Commissioner to both the parties fixing the date of appearance for further trial and disposal. 3. The amount which is in deposit shall be in deposit till a final decision is taken in the matter. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-