IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 MFA.No. 49 of 2005(A) ---------------------------- AGAINST THE ORDER DATED 30/10/2004 IN OLD NO.WC.129/89 IN WCC.303/2000 of W.C.C.,KOZHIKODE .................... APPELLANT/APPLICANT : ----------------------------- K.M.IBRAHIM, S/O. MUSTHAFA, KURUDY HOUSE, AMBINADU P.O., EDATHALA, (DIST.) ERNAKULAM. BY ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.BOSE K.THACHIL RESPONDENTS/OPPOSITE PARTIES 2 & 1 : ---------------------------------------------------- 1. THE ORIENTAL INSURANCE CO. LTD., ALWAYE, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. 2. K.M.KUNJUMOHAMMED, KURUDI HOUSE, AMBINADU P.O., EDATHALA, (DIST.) ERNAKULAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA), SC - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : MFA.No. 49 of 2005(A) ORDER ON I.A.NO.978 OF 2005 IN M.F.A.NO.49 OF 2005 DISMISSED 05.11.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE -TRUE COPY- P.A. TO JUDGE pac J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------------------------------- M.F.A No. 49 of 2005 ----------------------------------- Dated this the 5th day of November, 2008 J U D G M E N T J.B.KOSHY,J . Appellant/applicant sustained injuries in an accident during the course of employment. He was a heavy vehicle driver. He sustained injury viz. compression fracture of the first lumbar vertebre. As per the medical certificate, he cannot do work as a driver. Commissioner fixed disability at 100% and awarded total sum of Rs.1,03,990/- as compensation. Insurance Company filed an appeal wherein the matter was remanded for fixing percentage of loss of earning capacity by the medical board. The medical board found the disability of the appellant at 10% and upon another application preferred by the appellant, he was referred to the State Medical Board and his disability was fixed at 19%. For 19% loss of earning capacity, Rs.19,758/- with 6% interest was awarded. Therefore, the applicant is entitled to get only a total amount of Rs.22,720/- towards loss of earning capacity. Since he had already received an amount of Rs.50,000/-, commissioner directed him to M.F.A No. 49 /2005 2 refund Rs.27,280/-. It is further contended that due to the accident he cannot do heavy vehicle driving, hence he is doing vegetable business and his income is substantially reduced. We are of the opinion that physical disability has affected his earning power. In the circumstances we are of the opinion that Rs.50,000/- already received by the appellant need not be recovered. Appellant is directed to refund excess amount over and above Rs.50,000/- to the 1st respondent-Insurance Company, if it is not returned so far to the Insurance Company. J.B.KOSHY,JUDGE THOMAS P. JOSEPH, JUDGE scm