IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 MFA.No. 2 of 2005() ------------------- WCC.35/1997 of W.C.C.,KOZHIKODE .................... APPELLANT/ (APPLICANT): -------------------------------------- MOHAMMED ALIAS MUSTHAFA, AGED 43 YEARS, S/O. MOYIN, ATHIMANNIL HOUSE, PATTARKULAM, P.O. NARUKKARA, MANJERI. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: (OPPOSITE PARTIES): ------------------------------------------------------- 1. K.BALAN, S/O. SANKARANKUTTY, VELAPPIL HOUSE, CHEVARAMBALAM, KOZHIKODE. 2. THE NEW INDIA ASSURANCE COMPANY LTD., CHEROOTTY ROAD, KOZHIKODE. BY ADV. SRI.RAJAN P.KALIYATH - R2 SMT.ANUSHA RAMACHANDRAN - R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.2 of 2005 ===================== Dated this the 19th day of June, 2008. JUDGMENT Koshy,J. The appellant sustained injuries in an accident during the course of employment, while he was driving a vehicle insured by the second respondent - Insurance Company. The Tribunal found that the accident occurred during the course of employment and the Insurance Company is liable to pay the amount. Rs.300/- was claimed as daily wages. Even though he was a lorry driver during the relevant time, the maximum salary that can be taken in view of the provisions of the Workmen's Compensation Act was Rs.2,000/- for the purpose of calculation of the compensation. The Doctor certified 15% disability. There was a fracture on both bones (Lt) leg and deep lacerated wound over (Rt) knee and shortening of the left lower limb. The disability certificate issued by the Assistant Professor of Orthopaedics of the Medical College, Calicut certified that he had the following disability: "(1) Shortening of the (Lt) lower limb - 1 cm. (2) Varus angulation (Lt) leg - 150 (3) Knee movement (Lt) 0 - 1100 (4) Knee movement (Lt) 0 - 1150 (5) Ankle movement (Lt) Flexion = 120 MFA 2/05 -: 2 :- Extension = 150 Disability Evaluation. Based on the above findings the permanent disability is assessed as 15% (fifteen percentage)." The Commissioner without any reason reduced the disability into 10% and calculated the compensation. We are of the view that as per Section 4(1)(c)(ii) the Commissioner has to assess the loss of earning capacity in accordance with the assessment made by the qualified medical practitioner. Being a driver it cannot be stated that the percentage of loss of earning capacity was lower than the percentage of disability certified by the Doctor especially when there is shortening of leg. 2. In the above circumstances, the compensation payable will be Rs.35,035/- (2000x60/100x15/100x194.64). Hence, the additional compensation payable is Rs.11,678/-. The additional amount of 11,678/-should be deposited by the second respondent - Insurance Company with 12% interest from the date of accident till its deposit. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/6