IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 MFA.No. 546 of 2002(A) ---------------------- WCC.32/1998 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY: -------------------------------------------------------- THE ORIENTAL INSURANCE COMPANY LTD., U.BROTHERS BUILDING,GURUVAYUR ROAD,KUNNAMKULAM, REP.BY THE ASST.MANAGER,MOTOR THIRD PARTY CLAIMS CELL,REGIONAL OFFICE,NORTH RAILWAY STATION ROAD,ERNAKULAM,COCHIN 682 018 BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS: APPLICANTS AND 1ST OPPIOSITE PARTY: ---------------------------------------------------------------------------------------- 1. BESTIN THOMAS S/O.THOMAS, CHENATHUPARAMBIL HOUSE,RESIDING AT CHALAKUDY DESOM,CHALAKUDY VILLAGE,CHALAKUDY-P.O., MUKUNDAPURAM TALUK. 2. V.K.FRANCIS S/O.KUNJUVARU,VEMBIL HOUSE, PURANATTUKARA,THRISSUR BY ADV. SRI.P.V.BABY(CAVEATOR) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.3215/2002 IN M.F.A.NO.546/2002 DISMISSED 13/02/2008 SD/- J.B.KOSHY, JUDGE SD/-K.HEMA, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.546 OF 2002 ------------------------------------- Dated 13th February, 2008 JUDGMENT Koshy,J . Insurance company filed this appeal questioning the quantum of compensation awarded by the Commissioner for Workmen's Compensation. First respondent in this case while working as a cleaner in a lorry sustained injuries in an accident which arose during the course of employment. As per the medical certificate, he suffered the following difficulties due to the injuries: “1. amputated rt. Big toe from PIP Joint 2. amputated 2nd toe from DIP Joint 3. stiffness of all toes of rt. Foot 4. partial ankylosis of rt. Midtarsal joints due to soft tissue injury 5. mild stiffness of rt. Ankle due to soft tissue tethering at fracture site 6. loss of grip strength of rt. Foot 7. loss of toe off strength of rt. Foot 8. stump neuroma formation of distal parts of stumps with pain and paresthesia 9. ugly scar on dorsum of rt. Foot.” Medical practitioner assessed 15% disability and loss of earning capacity at 50%. Contention of the insurance company is that the injury sustained by the first respondent is a schedule injury and compensation can be granted only as per the loss of earning capacity fixed as per the MFA.546/2002 2 schdeule. As per Schedule I Part II, for amputation through metatarso-phalangeal joint loss of earning capacity is 14%, for part of great toe with some loss of bone it is 3% and for part of any other toe with some loss of bone it is 1%. Here, right toe was amputated from PIP joint, but, amputation of 2nd toe was only part with DIP joint. But, we note that apart from the amputation of part of great toe and part of another toe, other injuries were also suffered which resulted in stiffness of entire toes on right foot and ankylosis. However, even for non-schedule injuries, medical practitioner can assess loss of earning capacity only in proportion to the loss of earning capacity fixed in the schedule. In this connection, we refer to Section 4(1)(c)(ii) Explanation II of the Workmen's Compensation Act. Therefore, considering the various injuries mentioned in Schedule I Part II and also considering the totality of circumstances, the maximum loss of earning capacity that can be fixed is only 25% instead of 50%. If so, compensation payable will be Rs.2000 x 60 x 211.79 x 25 = 100 100 63,537/=. Liability of the insurance company is to deposit the above amount with interest at the rate of 12% per annum from the date of accident, 1.5.1996, till the date of deposit, i.e., 4.4.2002. It is submitted that one third of the amount deposited was already allowed to be withdrawn by the claimants. If the total amount awarded with interest is exceeding the amount deposited, balance should be MFA.546/2002 3 disbursed to the claimants and if there is any excess amount in deposit, it should be refunded to the appellant insurance company. The appeal is allowed to the above extent. J.B.KOSHY JUDGE K.HEMA JUDGE tks