IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 MFA.No. 108 of 2008(D) --------------------------------- ( AGAINST THE JUDGMENT IN WCC. NO. 71/2001 OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, KOTTAYAM) .................... APPELLANT/ OPPOSITE PARTY: ---------------------------------------------- THE MANAGER, LETCHMI ESTATE, MUNNAR.P.O, (NOW OWNED BY KANNAN DEVAN HILLS PLANTATIONS COMPANY PRIVATE LIMITED,KDHP HOUSE, MUNNAR-685612). BY ADV. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.ANIL D. NAIR. RESPONDENT/ APPLICANT: ---------------------------------------- M.KARUPPIAH, NO.2284, FACTORY, LETCHMI ESTATE, MUNNAR.P.O. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MFA No.108 OF 2008 ===================== Dated this the 5th day of January 2009 JUDGMENT This appeal is preferred against the judgment of the Workmen's Compensation Commissioner, Kottayam in WCC No.71 of 2001. The applicant therein sustained an employment injury and his permanent disability was assessed at 15%. Later it was referred to a medical board which assessed the disability at 32% on the basis of the loss of earning capacity. Accepting the same, the Workmen's Compensation Commissioner awarded compensation. It is against that decision the management has come up in appeal. 2. Learned counsel for the appellant strongly contends before me that immediately after the production of the disability certificate issued by the medical board without affording an opportunity the Commissioner has taken it for orders and that has resulted in injustice to the appellant. A Full Bench of this Court in the decision reported in Vanajakshnan v. Joseph (2003(2) KLT 462(FB) held that “the compensation has to be determined with reference to the loss in earning capacity and not the ability to perform MFA No.108/2008 -:2:- the duties of the job, which was being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of the ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties”. In the light of the said decision, the loss of earning capacity has to be assessed on the basis of the deprivation of the person of doing all the work which he was capable of doing and not the particular work which he was capable of doing and the matter has not been considered in that perspective and further, if the appellant wants to adduce further evidence it will be permitted to do so, so that the Compensation Commissioner can decide the matter on the appreciation of the materials available. Therefore the judgment under MFA No.108/2008 -:3:- challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner's Court and it shall issue notice to both sides fixing the date of appearance and thereafter permitting them to produce both oral and documentary evidence in support of their respective contentions and then dispose of the matter in accordance with law. MFA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-