IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Ins.APP.No. 13 of 2005() -------------------------------- ICA.17/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/APPELLANT : -------------------------------------- P.V.PONNAN, S/O.P.J.VINCENT, PALLIPARAMBIL HOUSE, KANJIRAMCHIRA, ALLEPPEY. BY ADV. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENT/OPPOSITE PARTY : ----------------------------------------------- THE REGIONAL DIRECTOR, EMPLOYEES' INSURANCE CO-OPERATION, PANCHDEEP BHAVAN, ROUND NORTH, TRICHUR. BY ADV. SRI.T.V.AJAYAKUMAR - R1 THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 13 OF 2005 --------------------- Dated this the 1st day of July, 2008 JUDGMENT This appeal is preferred against the order of the Employees Insurance Court, Alappuzha, in I.C.A. No.17/2003 . The said case was disposed of after an order of remand of this court. In the remand order this court held that “the order of the E.I. court in ICA 3/96 is set aside and the matter is remanded to the E.I. court for fresh consideration in accordance with law and in the light of the decision of the Full Bench in Vanajakshan and Others v. M.D.Joseph and Another. The E.I. court shall refer the injured Sri.P.V.Ponnan before the Medical Board for examination and assessment of his earning capacity and on the basis of the above report, an order shall be passed afresh as expeditiously as possible.” 2. The E.I. court on remand referred the person to the Medical Board. The Medical Board certified his loss of earning capacity as 30%. It just recorded that factor and held that the appellant is entitled for 30% permanent disablement benefit. 3. Learned counsel for the appellant would contend that such an approach by the Insurance Court is erroneous especially when Ins. Appeal No.13/05 2 there has been a clear cut direction to consider the matter in the light of the Full Bench decision reported in Vanajakshan and Others v. M.D.Joseph and Another [2003 (2) ILR (Kerala) 515]. In the operative portion of the judgment at para 2 the Full Bench held that “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.” 4. Just because there is an observation in the operative portion of the remand order that the medical report has to be received and an order has to be passed, this court never meant that the dictum laid down in the above decision need not be followed. It is very clear from the upper portion of the order of remand where the court has specifically directed to consider the question in the light of the above decision. Therefore the court should have granted an opportunity for the appellant herein to adduce evidence in support of his contentions raised in the appeal mentioned before the court and must have also Ins. Appeal No.13/05 3 permitted the other side to adduce rebuttal evidence in case of necessity. Therefore, the order under challenge is set aside and the matter is remitted back to the court below with a direction to consider the matter afresh in the light of the above discussions. The Insurance Court shall issue notice of hearing to the parties. M.N.KRISHNAN, JUDGE vps Ins. Appeal No.13/05 4