IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 MFA.No. 44 of 2006() -------------------- WCC.293/2002 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY -------------------------------- THE MANAGER, UNITED INDIA INSURANCE CO. LTD., ORISON COMPLEX, WADAKKANCHERRI ROAD, KUNNAMKULAM. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENTS: APPLICANT & IST OPPOSITE PARTY --------------------------------------------- 1. SANTHOSH, S/O.GANGADHARAN, VALATH VALAPPIL HOUSE, AYANNOOR, PAZHANJI, THRISSUR. 2. V.J.JOY, S/O.JOSE, VAZHAPPILLY HOUSE, PAZHANJI, THRISSUR. ADV. SRI.BOBBY MATHEW KOOTHATTUKULAM FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No.44 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2011 JUDGMENT K.M. Joseph J., The appellant/Insurer is the second opposite party in an application filed by the application before the Workman's Compensation Commissioner. The appellant challenges the order of the commissioner directing payment of a compensation of Rs.40,088/- with 12% interest. 2. Two substantial questions of law are projected in the Appeal. Firstly, it is contended that there is no basis to arrive at a finding that there is employer-employee relationship. Secondly, it is contended that taking of loss of earning capacity as 10% cannot be sustained. 3. As far as the question of the finding that the applicant was M.F.A.(W.C.Act) No.44 of 2006 :2: an employee, we notice that the applicant was examined as AW2, besides the examination of other witness as AW3. On the basis of the evidence, the Commissioner found that the applicant was a workman and there was employer-employee relationship. The owner of the vehicle/1st opposite party remained exparte. No substantial question of law exists in this regard. Accordingly we reject the contention. 4. Further question is regarding loss of earning capacity. Loss of earning capacity is taken as 10%. Ext.A1 is the disability certificate issued by AW1, who is a medical practitioner with MS Ortho, D. Ortho. The following are the disabilities certified: “There is loss of bone and soft tissue from distal phalanx and size of distal phalanx is very much reduced. There is ulnar angulation of 300 present at distal phalanx. There is a hypertrophied scar present at the distal phalanx which is very tender on palpation. There is also restriction of inter-phalangial joint of right thumb. Flexion is possible only upto 450 from M.F.A.(W.C.Act) No.44 of 2006 :3: full extension. There is loss of bone from distal ohalanx and non-union of fracture of distal phalanx of thumb. The permanent disability is assessed as 5% and loss of earning capacity is calculated as 12%.” 5. There was no petition for referring the applicant to the Medical Board. Thereafter, after hearing the argument the loss of earning capacity was decided as 10%. The applicant was working as a mechanic and he was aged 22 years. 6. Having regard to the totality of circumstances, including the amount of compensation awarded, we think that no substantial question of law is made out and we dismiss the MFA. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/