IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 MFA.No. 232 of 2006(B) ---------------------- W.C.C.415/2001 of the Commissioner for Workmen's Compensation , THRISSUR. APPELLANT(S): SECOND OPPOSITE PARTY ------------------------------------ THE NATIONAL INSURANCE CO. LTD., M.G.ROAD, THRISSUR, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CELL, AJAI VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT ------------------------- RAJU V., S/O. VELAN, VELLAYAMPADAM HOUSE, P.O.VADAZHI, PALAKKAD DISTRICT. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.232 of 2006 ----------------------------------------------- Dated 10th October, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The appellant challenges the order, by which the Commissioner has ordered payment of Rs.2,72,573.73 with 12% interest. 2. We heard learned counsel for the appellant and the learned counsel for the respondent/applicant. 3. The case of the applicant was that he sustained injuries in an accident, while he was working as driver of a lorry. The injuries are as follows : a. Serious knee injury to ligament and tendons left knee. b. Contaminated lacerated wound left knee with glass pieces deep inside the wound. c. Operation done. d. Multiple bodily injuries. Ext.A1 is the disability certificate issued by AW1. The medical practitioner was examined by the claimant. The claimant also examined himself. The Commissioner found that the following difficulties are noted in Ext.A1 : MFA 232/06 2 1. He has an adherent and painful scar over the anterolateral aspect of left knee. 2. He has 4 cm. of wasting of the left thigh muscle. 3. He has adhersion of left patella to the patellofemoral joint. 4. He has stiffness of the left knee with loss of lost 10o extension. Flexion is possible only upto 20o. Further extension is absent (about 110o.) 5. He has pain in the left knee on loading the left knee joint. 6. He cannot squat or sit comfortably. 7. He has 1.5 cm. of shortening of the left leg. 8. He is walking with the help of crutches. Permanent loss of earning capacity as lorry driver was assessed at 65%. The appellant filed a petition to refer the applicant to the Medical Board. Counter affidavit was filed by the applicant. It is stated in the order that after hearing both sides in detail, the loss of earning capacity is reduced and decided as 55%. The procedure adopted by the Commissioner is challenged before us. 4. Learned counsel for the claimant would point out that the applicant was the driver of a lorry having interstate operations. He further points out that on account of the injuries sustained, he has stopped his avocation as a lorry driver. It is MFA 232/06 3 proved by the production of the original licence before the authority. 5. Having regard to the nature of the injuries, we notice that the permanent loss of earning capacity was assessed as a lorry driver. We further consider the fact that the appellant was 28 years old at the time of accident. Having regard to the circumstances, we reduce the loss of earning capacity to 48%, instead of 55%. On the said basis, the appellant is liable to pay a sum of Rs.2,37,882/- to the claimant, with interest as ordered. 6. Accordingly, the appeal is allowed and the order is modified. The appellant is liable to pay a sum of Rs.2,37,882/- to the claimant, with interest as ordered. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.