IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 MFA.No. 24 of 2009(C) -------------------- WCC.109/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------------------------- NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD, THRISSUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT & OP 1 --------------------------------------------- 1. SIVANARAYANAN @ KUTTAN, S/O.KARUNAKARAN, POST KOOTALA, MUDIKODE, THRISSUR. 2. P.K.AYYOOB, AYYOOB & CO., POST EDAMUTTAM, THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 SRI.K.A.MANZOOR ALI FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 24 OF 2009 = = = = = = = = = = = = = = = Dated this the 22nd day of October, 2009. J U D G M E N T This appeal is preferred against the order of the Workmen's Compensation Commissioner in W.C.C.109/03. The Commissioner after consideration of all the materials found the claimant to have sustained 6% loss of earnings capacity and directed the insurance company to pay a sum of Rs.27,667/- and to pay interest from the date of accident and it is against that decision the insurance company has come up in appeal. The following substantial questions of law had been formulated for consideration. 1. Can the Commissioner enter into a finding regarding the employee-employer relationship and the status of the applicant as a Workmen without any legal evidence? 2. Is not the applicant bound to prove the wages by cogent evidence? 3. Is not the Commissioner bound to refer the applicant before a competent medical board for fixation of the percentage M.F.A. 24 OF 2009 -:2:- of loss of earning capacity? Especially when the certificate is ambiguous? 4. Is not the loss of earning capacity to be fixed with respect to all types of employment the workmen was capable of doing as mandated by the dictum of this Court's decision in Vanajakshan v. Joseph 2003 (2) KLT 462? 5. Is not the order of the Commissioner fixing the liability to pay the interest from the date of accident perverse especially when no notice was issued to the insurer insured and when no claim was preferred by the owner/insured enclosing the vehicular and other documents. Is not such an order opposed to the dictum laid down by the Apex Court in National Insurance Company v. Mubasir Ahammed II (2007) ACC 374 and in Kamala Chathurvedi v. National Insurance Co. Ltd. 2008 (4) KLT 862. Points 1 to 5: 2. This is an appeal wherein the claimant who is a driver by profession sustained injuries in an accident M.F.A. 24 OF 2009 -:3:- whereby he had dislocation of the thumb, a head injury and Myalgia. The Tribunal relied upon the disability certificate issued by the Doctor fixed the permanent disability at 3%, loss of earnings capacity at 7% but reduced it to 6%. An application was filed by the insurance company to refer the person to the medical Board and it was rejected by the Compensation Commissioner. Time and again the Apex Court as well as this court has cautioned that in working out the percentage of loss of earnings capacity the medical evidence has to be relied upon and there is no discretionary jurisdiction for an officer to fix it without materials. Then a Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) considered the said question and held that loss of earning capacity has to be calculated and it is extracted as follows. “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was being done by the workman at the relevant time. The compensation has to be M.F.A. 24 OF 2009 -:4:- assessed on the basis of the percentage of the loss of earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. 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 on a 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.” 3. In the light of the said decision it has to be remembered that loss of earning capacity should be referred to all the work which one was capable of performing and not the work which he was actually doing. In that angle the matter has not been considered. When this is the situation it M.F.A. 24 OF 2009 -:5:- is only just that the person is referred to a Medical Board to get an expert opinion and then permit the parties to adduce evidence and decide the case afresh. Therefore the award under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with a direction to refer the applicant to a medical board which necessarily contains an orthopedic expert and thereafter permit the parties to adduce evidence and then dispose of the matter in accordance with law. The question of interest be considered and decided as per the latest decision available on the point on the date of the said judgment. The Compensation Commissioner shall fix a date of appearance for the parties and then proceed to dispose of the matter in accordance with law. M.N. KRISHNAN, JUDGE. ul/-