IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 MFA.No. 73 of 2010 A -------------------------------------- (AGAINST THE JUDGMENT IN W.C.CASE NO.71/2006 DATED 23.12.2009 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- M/S.UNITED INDIA INSURANCE COMPANY LTD. CHOVVA BRANCH, CALTEX JUNCTION, KANNUR DISTRICT BY ADV. SMT.P.A.REZIYA RESPONDENT(S): APPLICANT & 1ST OPPOSITE PARTY: ------------------------------------------------------------------------------- 1. MAHESH P.V., S/O.RAGHAVAN, KALLYAN PO, KADACHIRA, KANNUR. 2. RAGHAVAN P.V, S/O.KUNHI KANNAN PADINJARE VALAPPIL HOUSE, P.O.KADACHIRA, ADOOR , KANNUR. ADV. SRI.C.P.PEETHAMBARAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC).NO.73 OF 2010 A ------------------------------------------ Dated this the 19th October, 2011 JUDGMENT K.M. Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. It challenges the order by which the Commissioner has awarded compensation to the first respondent/workman on the basis that he suffered loss of earning capacity in an extent of 100 per cent. This Court has passed an Order referring the workman to the Medical Board. The Medical Board has assessed the disability at eleven per cent. 2. We heard the learned counsel for the appellant and also M.F.A.(WCC).NO.73 OF 2010 2 the learned counsel appearing for the workman. It is submitted by the counsel for the appellant that in fact Rs.2,00,000/= was withdrawn by the first respondent/workman. In the Certificate issued by the Medical Board on the basis of the Order passed by this Court, the loss of earning capacity as such is not assessed. Normally, loss of earning capacity will be more than the disability assessed. 3. Having heard the learned counsel for the parties appearing and in the circumstances of this case, we take the loss of earning capacity at 28 per cent. On the said basis, the amount will be Rs.1,41,066/=. With interest at 12 per cent from 13.10.2006 to 11.2.2010, the amount would be Rs.57,837/=. Thus, the total amount would be Rs.1,98,903/=. The workman has already withdrawn Rs.2,00,000/=. Accordingly, the Appeal is partly allowed as above. It will be open to the appellant to withdraw the amount remaining in deposit. Counsel for the appellant submits that the appellant will not recover the amount of Rs.1,000/= and M.F.A.(WCC).NO.73 OF 2010 3 odd withdrawn in excess of the amount we have allowed in favour of the workman. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy// PS to Judge