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 22ND MAY 2008 / 1ST JYAISHTA 1930 MFA.No. 661 of 2003() --------------------- WCC.401/2001 of W.C.COMMISSIONER,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY ----------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11 BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: APPELLANT AND 1ST OPPOSITE PARTY --------------------------------------------- 1. SHANMUGHAN @ SHANMUGHANANDAN S/O. SUNDER RAJ, THAIMAKSHYPURAM DESOM, KARIVALLAM, VANTHANELLUR, PARAVAKKUDY P.O., SANKARANKOVIL TALUK, THIRUNALVELI DISTRICT, TAMIL NADU. 2. THULASI, W/O. MATHIVANAN, AGED 36 YEARS, VINAYAKAPURAM MAIN STREET, THONDIYARPET, CHENNAI - 81. BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, ALONG WITH CROSS OBJECTION NO. 60 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.661 of 2003 & Cross Objection No.60 of 2007 ===================== Dated this the 22nd day of May, 2008. JUDGMENT Koshy,J. The Insurance Company filed this appeal. The dispute is with regard to the quantum of compensation awarded by the Commissioner for Workmen's Compensation. The first respondent in the appeal while driving a mini lorry met with an accident on 1.10.2001. AW2 Doctor certified that there is 15% disability. The loss of earning capacity is assessed at 60%. 2. Questioning the above, the Insurance Company filed an application for referring the matter to the Medical Board. The Commissioner did not refer the claimant to the Medical Board, but decided to accept 60% as the loss of earning capacity and assessed it at 40%. Questioning the loss of earning capacity assessed by the Commissioner, the Insurance Company filed this MFA 661/03 -: 2 :- appeal. We have directed the Medical Board to assess the loss of earning capacity as provided under Section 4 of the Workmen's Compensation Act. The Medical Board now certified that the total disability is 36% and the loss of earning capacity is 70%. 3. Thereafter, a cross objection was filed by the claimant contending that he is entitled to compensation for 70% towards loss of earning capacity. Even though there was a specific direction to the Medical Board that loss of earning capacity was assessed as per Section 4 of the Workmen's Compensation Act, on going through the medical certificate, we are of the opinion that the loss of earning capacity was not assessed in tune with Section 4 of the Workmen's Compensation Act. The only disability was fracture on the right femur. He only complains pain on right hip and there is loss of mobility of the right hip. The injury is not covered under Section 5 of the Act. Section 4(1)(c) (i)&(ii) and its Explanations reads as follows: "(c) Where permanent (i) in the case of an injury specified in partial disablement Part II of Schedule I, such percentage results from the of the compensation which would have injury. been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury, and MFA 661/03 -: 3 :- (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. Explanation I:- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II:- In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I;" It is clearly mentioned that the loss of earning capacity should be assessed after considering the percentage of loss of earning capacity in relation to the injuries included in Schedule I. If that is considered, the compensation for 70% for loss of earning capacity for the injuries cannot be accepted. There is a fracture on the right femur. The Commissioner after considering the medical evidence assessed 40% as loss of earning capacity. 4. Considering the physical disability and considering the corresponding injuries mentioned in Schedule I, we are of the opinion that the assessment of the Commissioner is just and MFA 661/03 -: 4 :- reasonable and no interference is called for. Both the appeal and the cross objection are dismissed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/5