IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 Ins.APP.No. 24 of 2005(A) ----------------------------------- ICA.11/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/1ST OPP. PARTY ------------------------------------------- THE REGIONAL DIRECTOR, E S I CORPORATION, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENTS/APPELLANT & 2ND OPP. PARTY --------------------------------------------------------------------- 1. K.BABY, INSURANCE NO.54-316005, NEDUVILAPARAMBIL, PUNNAPRA, ALAPPUZHA. 2. M/S.ASPINWAL & CO. TRAVANCORE LTD., ALAPPUZHA. BY ADV. SRI.ANTONY DOMINIC - R2 SRI.A.M.SHAFFIQUE (SR.) - R2 SRI.E.K.NANDAKUMAR - R2 SRI.A.K.JAYASANKAR NAMBIAR - R2 SRI.M.V.MATHEW - R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 24 OF 2005 = = = = = = = = = = = = = = = Dated this the 16th day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees Insurance Court, Alappuzha in I.C.A.11/03. The E.S.I Court had passed a judgment with a direction to the Corporation to give him 50% disablement benefit till he is suitably rehabilitated and if it is impossible to rehabilitate to give him 100% disablement benefit. This is a third tyre of litigation and it is really sad that even at this stage this Court is not able to take a final decision for want of materials. It is a settled proposition that the loss of earning capacity should relate to the entire work which one was capable of doing at the time of the accident or incident and not the particular work which he was doing. A Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) while rendering a decision under the Workmen's Compensation Act held as follows. Ins. Appeal 24 OF 2005 -:2:- “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.” 2. At the stage of disposal of MFA 12/90 this Court gave a clear direction to the Court below to consider whether the first respondent herein can do any other work and earn income or whether he has completely stopped to do any work entitling to get 100% disablement benefit and the parties are at liberty to adduce evidence. A consideration of paragraph 4 of the award would only reveal that the evidence is tendered with respect to the work which he was doing and not with respect to the disability to do any work so as to entitle him to get 100% disablement benefit. Therefore the matter requires reconsideration and therefore the judgment of the Insurance Court is set aside and the matter Ins. Appeal 24 OF 2005 -:3:- is remitted back to the Court with a specific direction to find out regarding incapacity of the person as envisaged in the decision reported in 2003 (2) KLT 462. For this purpose, if any further medical examination is necessary or further additional oral or documentary evidence is necessary, both parties are at liberty to produce the same and the Court has to decide the matter strictly in accordance with law. The ESI Court is directed to issue notice to the parties fixing the date of hearing with sufficient time for them to appear. M.N. KRISHNAN, JUDGE. ul/-