IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 MFA.No. 194 of 2006() ------------------------------ WCC.498/2003 OF W.C.C.,THRISSUR .................... APPELLANT/ 2ND RESPONDENT --------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD,KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/APPLICANT AND 1ST OPPOSITE PARTY RESPECTIVELY -------------------------------------------------------------------------------------------------------- 1. SRI.C.T.JOSE, C/O. C.P.THOMAS,CHITTILAPPALLY HOUSE, P.O. PARAPPUR,THRISSUR. 2. SRI.P.D.DINESAN, PANGIL HOUSE, KAIPARAMBU P.O., THRISSUR. ADV. SRI.K.N.PADMAKUMAR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== MFA No.194 OF 2006 ===================== Dated this the 29th day of October 2008 JUDGMENT This appeal is preferred against the order of the Commissioner for Workmen's Compensation, Thrissur in W.C.C.No.498 of 2003. The applicant sustained injuries in a road accident and the Tribunal awarded him a compensation of Rs.51.316/- with 12% interest from the date of accident. The insurance company has come up in appeal. 2. The only point argued by the learned counsel for the appellant is regarding fixation of disability. A perusal of the award would show that the permanent disability was assessed at 11% and loss of earning capacity as a lorry driver at 19%. Somehow or the other, the Tribunal fixed the disability at 15% and passed an order. I am afraid that such a decision rendered by the Tribunal is contradictory to the dictum laid down by a Full Bench of this Court in Vanajakshan v. Joseph(2003(2) KLT 462(FB). The Full Bench held that “ 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 MFA 194/2006 -:2:- compensation has to be 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 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 of the 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”. Unfortunately the Commissioner has not considered the case on the basis of that decision. Therefore the matter requires interference. Therefore the order passed by the Workmen's Compensation Commissioner is set aside and a direction is given to him to decide the case following the dictum laid down by the Full Bench in the above mentioned case. Parties are permitted to adduce both oral and documentary evidence in support of their respective contentions and thereafter the Commissioner can dispose of the matter in accordance with law. I also make it clear that passing of this judgment will not dis-entitle the claimant to withdraw 50% MFA 194/2006 -:3:- of the amount which is already deposited in the court below. The Commissioner is directed to issue notice to the parties intimating the date of hearing. MFA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-