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. 194 of 2007() --------------------- WCC.518/2003 of WORKMEN'S COMPENSATION COMMISSIONER,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY. --------------------------------- THE NATIONAL INSURANCE CO.LTD THRISSUR, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT ------------------------ BAIJU VARGHESE @ BIJU S/O.VARGHESE,ATHIRKUZHIL HOUSE PANACHERY, KANNARA, THRISSUR. ADV. SRI.P.V.CHANDRA MOHAN THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.(WCC) No.194 of 2007 -------------------------------------- Dated this the 18th day of November, 2008. JUDGMENT Koshy, J. First respondent in this appeal while driving a car as part of his employment sustained injuries on 20.3.2003. He applied for compensation claiming an amount of Rs.5,03,808/-. He had mainly fracture, shaft of right femur with cutting of blood vessels and veins and multiple fracture of ribs with surgical emphysema apart from chest injuries and other bodily injuries. He produced Ext.A5 disability certificate wherein doctor assessed loss of earning capacity as 70%. The above reads as follows:- “1) His left rib fractures have malunited. 2) He has a tears verse adherent scar 5 cm long over the anterolateral aspect of left chest. 3) He has decreased chest expansion on the left side of chest. MFA No.194/2007 2 4) He has pain on the left side of the deep inspirations and on bending and lifting weight. 5) His left femur fracture has malunited. 6) He has excess callus with a swelling over the right tie. 7) He has 1.5 c.m. shortening of the right lower limb. 8) He has 2 c.m. wasting of the right thigh muscles with legs. 9) He has stiffness of right knee. 10) He has stiffness of right hip. 11) He has difficulty in squatting and climbing up and down stairs. 12) He has to use crutches for long time. MFA No.194/2007 3 The Loss of earning capacity is assessed as 70% as driver.” The above certificate was given by Dr.K.Balagopalan M.B.B.S, MS (ortho), DNB (Ortho) who was examined as AW2 and proved Ext.A5 certificate. Even though Doctor certified 70% loss of earning capacity, Commission assessed only 60% loss of earning capacity and awarded compensation. Insurance company questioned the medical certificate and filed an application to refer the claimant to the medical board. But Commissioner dismissed the application and assessed loss of earning capacity at 60%. In every case where Insurance company filed applications for referring the case to the medical board, Commissioner is not bound to send the claimant to the medical board. If the medical certificate produced and proved appeared to the Commissioner as not correct, then the Commissioner has to send the claimant to the medical board. Section 4(1)(c)(ii) of the Workmen’s Compensation Act reads as follows:- “4. Amount of Compensation.-(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- xxxxxxxx (c) Where permanent partial disablement result from the injury (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate MFA No.194/2007 4 to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I. -Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.-In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;” Therefore, Commissioner is bound to assess loss of earning capacity as assessed by the medical practitioner. If the medical certificate produced did not specify the percentage of loss of earning capacity, Commissioner can refer the claimant to a doctor or a medical board for assessing loss of earning capacity. If Commissioner suspects genuineness of the certificate issued , he can refer the claimant to the medical board. Here the medical certificate was issued by a qualified medical practitioner who was examined as AW2. The claimant was also examined. Commissioner was satisfied that the injuries mentioned in the medical certificate are correct. Even though claimant has 70% loss of earning MFA No.194/2007 5 capacity as per the certificate, the Commissioner assessed the same as 60%. Further in this case, it has been noted in Ext.A5 that there was femur fracture, swelling over right knee, 1.5 cm shortening of right lower limb and 2 cm. wasting of the right thigh muscles with legs apart stiffness of right hip and knee, malunited fracture of rib, etc. It is true that the medical practitioner while assessing the loss of earning capacity should bear in mind the percentage fixed for loss of earning capacity for schedule injury. In the schedule, the percentage of loss of earning capacity in the case of amputation below hip with stump not exceeding 12.70 cms in length is 80%, the percentage of loss of earning capacity in the case of amputation of the leg at hip is 90% and the percentage of loss of earning capacity in the case of amputation below middle thigh to 8.89 cms, below knee is 60%. According to the claimant, as a result of the accident he will not get any job and his loss of earning capacity is total as he cannot do any hard work. Commissioner has personally seen the claimant and assessed 60% as the loss of earning capacity. We are of the opinion that on the facts of this case no interference is required at the instance of the Insurance Company. It is contended by the Insurance Company that interest awarded from the date of accident is not correct. As per the mandate of section 4-A of the Workmen's Compensation Act, compensation has to be paid within one month from the date it falls due and interest has to be paid for delayed payment on the amount due. Considering the three member bench decision of the Hon'ble Supreme Court in K.S.E.B. v. Valsala ((1999) 8 SCC 254) and paragraphs 7 MFA No.194/2007 6 and 8 of the Constitution Bench decision of the Hon'ble Supreme Court in Paratap Narain Singh Deo v. Shrinivas Sabata and another (AIR 1976 SC 222) and various decisions pointed out in M.F.A.No.84 of 2007, a Division Bench of this court in which one of us (J.B.Koshy, J) was a party, held that as per the provisions of the Workmen's Compensation Act, interest on compensation amount is payable from the date of the accident. The SLP filed from the above judgment was dismissed as can be seen from the order of the Supreme Court in SLP(C)No.10696/2008 in National Insurance Co. Ltd. v. N.Khadeeja & Others . Interest was awarded by the Commissioner correctly. We see no ground to interfere in the award at the instance of the Insurance Company. Appeal is dismissed. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks