IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 MFA.No. 162 of 2004 ----------------------------- W.C.C. NO. 101/2002 OF THE C.W.C., KANNUR. .................... APPELLANT/ 2ND OPO.PARTY: -------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, 2ND FLOOR, CENTURY PLAZA, THAVAKKARA, KANNUR. BY ADV. SRI.RAJAN P.KALIYATH. RESPONDENTS/ APPLICANTS AND O.P.1: ------------------------------------------------------------ 1. ARAVINDAKSHAN, S/O.KUNHIRAMAN, THEKKANTE VALAPPIL HOUSE, KOTTOOR, POST KADACHIRA. 2. K.KRISHNAN, KANNOTH VEEDU, POST MAKRERI, PERLASSERY, KANNUR. ADV. SRI.P.M.PAREETH FOR R1. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.F.A.(WCC).NO.162 OF 2004 () ----------------------------------- Dated this the 20th day of October, 2008 J U D G M E N T KOSHY,J. The 1st respondent filed an application before the Commissioner for Workmen's Compensation claiming compensation from the employer and appellant Insurance company contending that while he was driving an autorickshaw, a child ran across the road and while he applied brake, auto capsized and he was injured. Hence he suffered personal injury in an accident during the course of employment. According to the 1st respondent/applicant, he was aged 35 years and his monthly salary was Rs.4,500/-. Commissioner found that accident occurred as alleged. From Ext.A2 wound certificate, it was found that the applicant was aged 33 years against the averment in the claim petition that at the time of accident, he was 35 years old, and therefore, index factor under the Workmen's compensation Act was MFA.162/04 2 taken as 201.66 and calculated compensation and awarded an amount of Rs.1,11,316/- with 12% interest from the date of accident (29.7.2001) till the date of the order (22.5.2003). Various contentions are raised by the appellant. First contention is that the monthly income assessed by the Commissioner as Rs.4,000/- was not correct. But we are of the view that being an auto driver, he may earn atleast Rs.150/- per day and Rs.4,000/- fixed as monthly income cannot be interfered. Secondly, it is contended that in the application, applicant's age was shown as 35. Merely because in the wound certificate applicant's age was taken as 33, Commissioner fixed his age as 33. In the photocopy of the electoral card produced by the applicant it is stated that as on 1.1.1998, the applicant's age is 32. If that be so, in 2001, age will be 35. In Ext.A5 disability certificate, it is stated that he was aged 35. Considering these factors, we are of the opinion that the Commissioner ought have taken 35 as the age of the applicant for determining compensation. If 35 is the age at the time of application, relevant factor is 197.06. 2. It is contended that the percentage of disability fixed at 23% is exorbitant. In Ext.A5 disability certificate, it is MFA.162/04 3 stated that the Doctor assessed the percentage of disability at 23%. Under Section 4(1)(c)(ii) of the Workmen's Compensation Act, in the case of non specified injury, compensation payable in the case of permanent disability as is proportionate to the loss of earning capacity as assessed by the qualified Medical Practitioner. But Explanation II very clearly provides that the medical practitioner also shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. Now we will come to the wound certificate to find out the injuries suffered by the claimant in the accident. Wound certificate produced by the applicant shows that he had lacerated wound 7 x 4 cm left head. It also further mentions that the X-Ray of left leg shows that there is no bony injury. Discharge card issued from the A.K.G.Memorial Co-operative Hospital, Kannur shows that only suturing was given and wound was healed. On 29.7.2001, he was admitted and the date of discharge was 1.8.2001. Thus he was under inpatient treatment for four days. There was no fracture to the leg or to any of the bones. Only lacerated wound was there. It is contended by the appellant that if the wound is cured, there will be no permanent disability or loss of earning capacity MFA.162/04 4 except temporary disability. Ext.A5 disability certificate issued after about one year of the accident is not tallying with the injuries mentioned in the wound certificate or it cannot be stated that the disability certified in Ext.A5 is only due to the direct result of the accident. The Doctor who issued the disability certificate was not examined. Therefore, we are of the view that the above disability certificate should not have been relied on by the Commissioner. It is contended by the counsel for the claimant that the disability was marked without any challenge. All the documents were marked without any challenge. It is contended by the counsel for the appellant that there is no permanent disability at all and there is no loss of earning capacity and, at the maximum, he will be entitled to half of the monthly earnings for temporary disability caused for some time. We are of the view that being an autorikshaw driver, deep wound may cause some difficultly. In any event, even by a liberal assessment, it cannot go above 10% disability and consequent loss of earning capacity. If that be so, compensation payable will be Rs.4,000 x 60/100 x 10/100 x 197.06 = Rs.47,294.40 rounded to Rs.47,295/-. He is also entitled to interest from the date of accident, that is, 29.7.2001 till the date of deposit of MFA.162/04 5 compensation, 23.9.2004, at the rate of 12% per annum amounting to Rs.17,972/-. Therefore the 1st respondent is entitled to only the above amount of Rs.65,267/- as compensation with interest. The compensation amount of Rs.1,11,316/- was already deposited as a condition precedent in filing the appeal. If the deposited amount is not already disbursed, the amount due as stated above shall be paid to the 1st respondent workman. Excess amount deposited should be refunded to the appellant Insurance company. If the compensation amount is deposited, excess amount paid shall be recovered by revenue recovery proceedings. With the above observations, this appeal is partly allowed and the impugned award of the Commissioner is modified. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 14th October, 2008