IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 MFA.(WCC)No. 114 of 2006() ------------------------------ WCC.238/2004 of W.C.C.,(DEPUTY LABOUR COMMISSIONER), THRISSUR .................... APPELLANT/APPLICANT: ------------------------------------ C. RADHAKRISHNAN, K.S.E. BOARD, PETTY CONTRACT WORKER, KARIPPANKULANGARA HOUSE, P.O. THENKURISSY, PALAKKAD DISTRICT. BY ADV. SRI.G.D.PANICKER SMT.JEENA JOSEPH RESPONDENTS/OPPOSITE PARTIES: ----------------------------------------------------- 1. THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) THRISSUR. 2. THE SECRETARY, KSEB, PATTOM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KSEB, PALAKKAD. 4. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KSEB, KANJUKODU. 5. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KSEB, KANJIKODU. 6. SRI. M.M. SARDAR, KSEB, PETTY CONTRACTOR, ELECTRICAL SUB DIVISION, KANJIKODE. (S/O. SRI.KARIM, MURIKARU HOUSE, WEST YAKKARA, PALAKKAD.) ADV. SRI.RAJESH SIVARAMANKUTTY FOR R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & THOMAS P. JOSEPH, JJ. ================================ M.F.A.No.114 of 2006 - C =============================== Dated this the 18th day of November, 2008. J U D G M E N T KOSHY, J. Appellant sustained injuries during the course of employment. He claimed compensation of Rs.6,00,000/-. The Workmen's Compensation Commissioner awarded an amount of Rs.1,68,210/-. The amount awarded is challenged in this appeal. Appellant claimed that he was earning Rs.200/- per day. Therefore, his monthly income was more than Rs.4,000/- per month. The Commissioner fixed only Rs.3,000/- as monthly income. Even though the appellant stated that his daily income was Rs.200/-, no evidence was adduced to prove the same. Therefore the Commissioner fixed the compensation at Rs.3,000/-. We find no ground to change the same. Ext.A1 medical certificate issued by Dr.Soman states that the appellant's physical permanent disability is 40 % but loss of earning capacity is 100%. Commissioner fixed 50% as loss of earning capacity. Admittedly, injuries sustained are not scheduled injuries under Section4(I)(c)(iii) of the Act. If the injury sustained is not scheduled in the list, Commissioner has to assess the loss of M.F.A.No.114 of 2006 - C 2 earning capacity as certified by the qualified medical practitioner. Since loss of earning capacity was not assessed by Dr.Soman, as per the provisions of the Workmen's Compensation Act, the appellant was examined by the Special Medical Board constituted at Government Medical College Hospital, Thrissur as ordered by us. It was certified that his loss of earning capacity considering the schedule and nature of injuries is 62.94%. In the above circumstances, compensation should be granted for loss of earning capacity on the basis of medical certificate. Hence compensation payable is (3000 x 60/100 X 186.90 X 62.94/100) Rs.2,11,743. After deducting the compensation amount of Rs.1,68,210/- already awarded, balance is Rs.43,532/-. Therefore, the additional compensation of Rs.43,532/- should be deposited by the 2nd respondent with 12% interest from 22.11.2003 till its deposit. On deposit of the same, the appellant is entitled to withdraw the same. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE bkn/-