IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MFA.No. 1201 of 2001(A) ----------------------- WCC.136/1997 of W.C.C., KANNUR .................... APPELLANT(S): -------------- THE NEW INDIA ASSURANCE CO.LTD KALPETTA, REPRESENTED BY ITS ASST. ADMINSITRATIVE OFFICER REGIONAL OFICE, KANDOMKULATHY TOWERS M.G.ROAD, KOCHI-16 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENT: ------------------ 1. P.T.MATHAIKUNJU, S/O ISSAC PULINATTU HOUSE, KARIMBADI P.O, PURAKKADI VILAGE, S.BATHERY TALUK 2. T.M.BABU, S/O MATHAI THOPPIL HOUSE, EDAYOORKUNNU KARTHIKULAM P.O, MANANTHAVADY. ADV. SRI.N.J.ANTONY FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P NO. 8219 OF 2001 IN M.F.A. NO. 1201 OF 2001 DISMISSED SD/- C.N.RAMACHANDRAN NAIR,JUDGE SD/- HARUN-UL-RASHID, JUDGE 06.10.2008 C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. ----------------------------------------- M.F.A. No.1201 of 2001 ----------------------------------------- Dated this the 6th day of October, 2008 JUDGMENT Ramachandran Nair .J, This appeal is filed by the Insurance Company challenging the award of compensation to the 1st respondent. It is the case of the appellant that the Workmen's Compensation Commissioner has seriously gone wrong in fixing the functional disability as 40% even though Ext.A3 disability certificate would shows that the 1st respondent had sustained 7% disability. Having regard to the contentions raised by the appellant, particularly the disparity in the percentage of loss of earning capacity certified by the Medical Board, this Court vide order dated 19.9.2007 directed the 1st respondent to undergo a fresh medical examination by a Medical Board constituted by the Superintendent, District Hospital Wayanad. Even though the order was passed on 19.9.2007, it is seen that so far the 1st respondent does not appear to have presented before the medical Board or produced the order dated 19.9.2007 before the Superintendent of District Hospital Wayanad. We do not think that any purpose will be served by keeping this appeal pending indefinitely. However, the 1st respondent will be entitled to compensation in terms of the Medical Board report called for by this Court vide interim order dated 19.9.2007. It is for the 1st respondent to produce this order before the Superintendent of District Hospital Wayanad for constituting a Medical M.F.A. No.1201 of 2001 -2- Board and examine the 1st respondent. In the said circumstances we set aside the award with a direction to the Workmen's Compensation Commissioner to re-fix the compensation based on the fresh Medical Board report to be produced after examining the 1st respondent. The Workmen's Compensation Commissioner is directed to pass fresh orders within three months of receipt of a copy of this judgment, after issuing notice to the parties. This appeal stand allowed to the above extent. (C.N.RAMACHANDRAN NAIR,JUDGE) (HARUN-UL-RASHID, JUDGE) es. M.F.A. No.1201 of 2001 -3- C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------- M.F.A. No. 1201 of 2001 ---------------------------- JUDGMENT 6th October, 2008