IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 MFA.No. 98 of 2005(A) -------------------------------- WCC.NO.101/2001 THE COMMISSIONER FOR WORKMEN'S COMPENSATION. KANNUR .................... APPELLANT/ APPLICANT: ------------------------------------ K. THYAMPANNA, S/O. SUBHANNA POOJARI, R/AT KORAKODU, P.O. KASARAGAOD-671 121. BY ADV. SRI.T.SETHUMADHAVAN, ADV. SRI.PUSHPARAJAN KODOTH. RESPONDENTS/ OPPOSITE PARTIES 1 AND 2: ------------------------------------------------------------------ 1. SRI. A. HARISHA, S/O. LATE REGHU, COLLAMME HOUSE, ADKATHBAIL, KASARAGOD. 2. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, M.G. ROAD, KASARAGOD-611 121. R2 BY ADV. SRI.E.M.JOSEPH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.No.98 OF 2005 ------------------------------------- Dated 7th November, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident during the course of employment. He filed an application for compensation claiming an amount of Rs.2,00,000/=. As a result of the accident, he sustained fracture of fibula and tibia of the left leg apart from the abrasions. According to the claimant, he was an autorickshaw driver by profession and the accident occurred while he was driving the autorickshaw. He cannot drive the vehicle after the accident and he is entitled to compensation for 100% disability and loss of earning power. He produced Ext.A3 disability certificate wherein the Civil Surgeon of Government Wenlock Hospital, Mangalore certified that there is 20% permanent disability, but, loss of earning capacity is not certified. The Commissioner did not accept Ext.A3 certificate merely because signature of the claimant was not in the certificate. But, it is a certificate issued in the official form by the District Medical Officer. Considering the injuries in the wound certificate, there was no reason for rejecting Ext.A3 certificate which assess the physical disability of fibula and tibia. It is not stated that there is 20% occupational disability. However, long MFA.98/2005 2 distant driving will be difficult and he will not be able to stand for a long time. Considering these facts, we are of the opinion that at least 10% loss of earning power has to be assessed by the Commissioner. It is true that what was suffered by the appellant is not a schedule injury. Therefore, disability has to be assessed as provided under section 4(1)(c)(ii) of the Workmen's Compensation Act. The Commissioner is bound to assess the disability on the basis of the loss of earning capacity as assessed by the qualified medical practitionner as to the proportion of the loss of earning capacity in the schedule. Considering the schedule injury of amputation of one leg and also considering the physical disability as certified by the doctor, only 10% loss of earning capacity can be fixed. The accident occurred before the amendment of the Act by Act 46 of 2000. The maximum income that can be taken into consideration for calculation of compensation is only Rs.2,000/= as against Rs.3,500/= fixed by the Commissioner. The appellant was aged 41. The relevant factor for 41 years as per the schedule is 181.37. If that be so, compensation payable will be Rs.21,764/- (2000 x 60 x 10 x 181.37), rounded to Rs.21,700/=. The 100 100 Commissioner awarded Rs.10,500/=. So, the additional compensation payable will be Rs.11,200/=. The above amount of Rs.11,200/= should be deposited by the second respondent insurance company with 12% interest from the date of accident, i.e. 4.10.2000, till its MFA.98/2005 3 deposit. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks