IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 MFA.No. 848 of 2002(B) ---------------------- (O.P.(MV) NO.731/1996 OF ADDL. MACT, ERNAKULAM.) APPELLANT(S): 3RD RESPONDENT ---------------------------- THE NEW INDIA ASSURANCE CO.LTD., REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): CLAIMANT AND RESPONDENTS 1,2 & 4 ----------------------------------------------- 1. JAMES S/O. PETER, PLAPPILLY HUSE, THOPPUMPADY, NEAR ST.SEBASTIAN'S CHURCH, COCHIN- 682 005. 2. SHAMSUDHEEN, OLIPARAMBU HOUSE, MUPPATHADAM P.O., KADUNGALLOR, ALUVA(VIA), ERNAKULAM DISTRICT. 3. SHAMSUDHEEN M.K., MANAKKAPARAMBIL HOUSE, MUTTOM, ALUVA (VIA), ERNAKULAM. 4. THE NEW INDIA ASSURANCE CO.LTD., W-ISLAND, KOCHI-3. ADV. SRI.RAJU JOSEPH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... M.F.A. No.848 of 2002 .................................................................... Dated this the 21st day of May, 2009. JUDGMENT Ramachandran Nair, J. The appeal is filed by the Insurance Company against the award of the MACT on the ground that compensation awarded under various heads is excessive. 2. We have heard counsel appearing for the Insurance Company and counsel appearing for the claimant. We find force in the contention of the Insurance Company that the compensation awarded for loss of earning is not supported by proper evidence. Claimant was a Marine Engineer in the Cochin Port Trust. Therefore, there was no difficulty for the claimant to get a certificate from the employer about the exact amount of wages that was lost to him on account of his leave. Being a Government agency Port Trust is bound to issue a certificate stating the exact loss of pay suffered by the claimant for the period of leave and the category under which leave was granted by the Port Trust. We feel claimant should have produced a certificate containing 2 all these details for the MACT to grant compensation under this head. So far as the challenge against compensation awarded for loss of earning power and for permanent disability is concerned, we find evidence produced is not tenable as such. During service, the claimant would not have suffered any loss of earning unless the disability led to any reduction in wages or employment prospects which if claimant claims, should have been supported by evidence from employer. On the whole, we find the award is not based on proper evidence. We, therefore, set aside the award with direction to the MACT to give opportunity to the claimant to produce proper evidence and to pass fresh orders within a period of three months from the date of production of copy of this judgment. 50% of the compensation released to the claimant will be retained by him and the same will be reckoned while granting balance compensation. MACT will post the case and issue notice to parties soon after receipt of judgment. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms