IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 MFA.No. 235 of 2002(E) ---------------------- WCC.323/2000 of COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT: 2ND OPP. PARTY. ------------------- NATIONAL INSURANCE COMPANY LTD., GURUVAYUR BRANCH, SREE NARAYANA TOURIST BUILDING, P.B.NO.42, GURUVAYUR, PIN-680 101, REPRESENTED BY ITS ASST.ADM. OFFICER, REGIONAL OFFICE, KOCHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT AND OPP. PARTY-1. ------------------------ 1. SIVAN, S/O. MURUGAN EZHUTHACHAN, CHANDICHALA HOUSE, KUNDALOOR POST, THALOOR, PALAKKAD DISTRICT. 2. M.R.SUDHAKARAN, S/O. RAMANKUTTY, VENGALAPARAMBU HOUSE, KODUNTHIRAPILLY, PALAKKAD. BY ADV. SRI.DILIP J. AKKARA - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F..A. NO.235/2002 ORDER ON CMP. NO.1155/2002 IN MFA. NO.235/2002 DISMISSED 29.02.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.235 OF 2002 (E) ----------------------------------- Dated this the 29th day of February, 2008 J U D G M E N T KOSHY,J. The 1st respondent sustained injuries in an accident on 23.9.2000 during the course of employment. He claimed a compensation of Rs.2,00,000/-. Commissioner found that accident occurred during the course of employment as a driver of the autorickshaw and the autorickshaw was insured by the appellant Insurance company. The claimant produced a medical certificate issued by Dr.K.Soman, wherein he assessed 25% permanent disability and 75% loss of earning capacity. Commissioner awarded compensation for 75% disability. Considering the nature of injuries, prima facie, we are of the opinion that loss of earning capacity awarded by the Doctor is on the high side. We directed the applicant to be examined by the Medical Board constituted by the Medical College Hospital, Thrissur. Medical Board certified that his permanent physical disability is only 15% and loss of earning capacity is 30% as an auto driver. It is further noted that the Medical Board has MFA.235/2002 2 certified only disability for that particular job and that itself is on the high side. In any event, at the maximum, only compensation that can be awarded is only for 30% loss of earning capacity instead of 75% loss of earning capacity. If that be so, compensation payable will be Rs.2,000 x 60/100 x 213.57 x 30/100 = Rs.76,885.2 rounded to Rs.76,885/-. Commissioner has awarded Rs.1,92,213/-. The above amount was deposited without interest at the time of filing the application. Hence, the amount payable to the appellant is only Rs.76,885/- with 12% interest from the date of accident, that is, 23.9.2000 till the date of deposit, that is, 17.12.2001. The claimant was allowed to withdraw 50% of the amount deposited. He must have utilised the amount, and therefore, we are not ordering recovery of the excess amount from the claimant. But the balance amount deposited shall be refunded to the appellant Insurance company forthwith. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.235 OF 2002 (E) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 29th February, 2008