IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 MFA.No. 56 of 2009 F ----------------------- (AGAINST THE JUDGMENT DATED 27.08.2008 IN W.C.C.NO.41 OF 2003 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER, KOLLAM). .................... APPELLANT(S): APPLICANT ---------------------------------------- SRI.RAMADAS, S/O.GOPALA PILLAI, KOCHUKALEECKAL KIZHAKKATHIL, CHANGANKULANGARA, OACHIRA. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): IST AND 2ND OPPOSITE PARTIES ------------------------------------------- 1. SRI.BABURAJ S., SANTHI, PADA NARTH, NEAR GOVT. HOSPITAL, KARUNAGAPPALLY. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., KOLLAM BRANCH, CHINNAKADA, KOLLAM. SRI.P.JACOB MATHEW FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.NO. 56 OF 2009 F ------------------------------------------ Dated this the 25th October, 2011 JUDGMENT K.M. Joseph, J. Appellant is the applicant in proceedings under Section 22 of the Workmen's Compensation Act. His case was that he was a driver of an Ambulance, and that he suffered injury to his left eye. The Medical Board certified the loss of earning capacity at thirty per cent. Applying the percentage of loss of earning capacity as thiryty per cent, the Commissioner has ordered compensation in a sum of Rs.1,12,309/= with interest at twelve per cent. 2. We heard the learned counsel for the appellant and the learned counsel for the insurer. Complaint of the counsel for the appellant is that though it is true that the Medical Board has certified the loss of earning capacity as thirty per cent, having regard to the vocation of the appellant, namely the fact that he was MFA.NO.56 OF 2009 F 2 the driver of the vehicle, the disability of loss of vision to the left eye, has a significant impact on his job as a driver. In other words, he is permanently disabled from continuing as a driver and, therefore, it should be treated that he suffered hundred per cent loss. In support of his contention, learned counsel for the appellant, relied on the Judgment of this Court in New India Assurance Co. Ltd. v. Santhosh (2011 (2) KLT 747). Therein, it is noticed that the insured was a driver in a tanker lorry used to carry inflammable and hazardous materials. The Court upheld the finding of the Commissioner who had assessed the loss of earning capacity as hundred per cent resulting in the claimant therein being permanently disabled to continue his avocation in life. This Court noted that the drivers of tanker lorries may have to undertake inter- State overnight journeys covering long distances and no employer in such circumstances will engage a driver with one eye to drive such heavy vehicles. It is further found that it is hazardous for such a driver to undertake long distance overnight drive on MFA.NO.56 OF 2009 F 3 highways. The Court repelled the contention of the insurer that even assuming that the claimant may be able to get some other employment, which need not necessarily be that of a driver, and it was held that it could not be said that he will have to be satisfied with whatever he gets as remuneration from such employment. The Court found that the claimant therein was working as a professional driver of a heavy transport vehicle and loss of one eye had obviously resulted in permanent disablement as far as the claimant was concerned. 3. Learned counsel for the respondent/insurer would point out that thirty per cent was awarded on the basis of the evaluation of the Medical Board and, therefore, there cannot be any further increase. 4. Having regard to the fact in this case that the appellant was a driver of an Ambulance, the Commissioner has taken the visual disability at thirty per cent. The appellant was aged thirty years. Having considered all the circumstances, we would increase MFA.NO.56 OF 2009 F 4 the compensation by taking the loss of earning capacity at fortyfive per cent. Accordingly, the compensation payable would be Rs.1,68,463.64 which is rounded as Rs.1,68,464/= with interest at twelve per cent from the date of the accident till the date of payment. The Appeal is accordingly allowed as aforesaid and the impugned order will stand modified as aforesaid. The amount is to be paid by the insurer, the second respondent. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge MFA.NO.56 OF 2009 F 5