IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 MFA.No. 196 of 2002() --------------------- WCC.145/1998 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY: ------------------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE,KANDOMKULATHY TOWERS,M.G.ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: APPLICANT & 1ST OPPOSITE PARTY: ---------------------------------------------------------------------------------- 1. K.P.DASAN S/O.KUTTYPANGAN, KUNNATHALLY HOUSE,MULLASSERY,THRISSUR. 2. K.A.MOINUDHEEN,KULANGARATH ALUVAKAYIL, PALAMDADAVU P.O.,THRISSUR. R1 BY ADV. SRI.DILIP J. AKKARA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.967/2002 IN M.F.A.NO.196/2002 DISMISSED 22/05/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.N.KRISHNAN, J. -------------------------- M.F.A. No. 196 OF 2002 --------------------- Dated this the 22nd day of May, 2008 JUDGMENT This appeal is preferred against the award of the Workmen's Compensation Commissioner, Thrissur, in W.C.C No.145/98. The applicant sustained injuries in a road accident. He was a driver by profession and has sustained fracture and the Workmen's Compensation Commissioner assessed the compensation at Rs.62,976/-. It is against that decision the present appeal is preferred. 2. The learned counsel for the Insurance company would contend that there is no evidence to prove that he was the employee under the first respondent in that petition. It was while driving the vehicle he was injured and the first respondent in the application had remained ex-parte and further the claimant has deposed before the court that he was the employee under the first respondent. There is no contra evidence and therefore the Workmen's Compensation Commissioner correctly arrived at the finding that he was an employee of first respondent and had sustained injury during the MFA NO.196/02 2 course of employment. 3. The next question that arises for consideration is the compensation. It can be seen from the award that the Workmen's Compensation Commissioner relied upon the certificate issued by the Doctor which would show that there was a retraction and reduction in the length of right big toe, stiffness of 1st metatarsophalageal joint of right foot and restriction in dorsiflexion of right foot. Doctor assessed the permanent disability at 7% and loss of earning capacity at 25%. The Workmen's Compensation Commissioner accepted the disability at 25% and calculated the compensation. It is fairly settled position that when loss of earning capacity is calculated it must be with respect to the working capacity of the person and not attributable to one point alone. So it was not correct to accept 25% disability as such to award compensation. 4. After hearing the learned counsel for both sides, I feel it is only just and reasonable to fix the percentage at 18% to calculate compensation. The minimum of Rs.2,000/- of income can be taken. He was aged 29 years. The index applied is 209.92. If the compensation is calculated at the rate of 18% disability, it would come to Rs.45,342.72/- which I round to Rs.45,350/-. The simple MFA NO.196/02 3 interest granted by the Commissioner is sustained. The MFA is partly allowed and the compensation is reduced to Rs.45,350/- with 12% interest per annum from the date of filing of the application. The order of payment shall be as detailed in the order of the court below. M.N.KRISHNAN, JUDGE vps MFA NO.196/02 4 MFA NO.196/02 5