IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 MFA.No. 57 of 2006() -------------------------- WCC.261/1998 of W.C.C.,KOZHIKODE .................... APPELLANT(S): 2ND OPPOSITE PARTY --------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KALLAI ROAD,KOZHIKODE REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, "SHARANYA",HOSPITAL ROAD, ERNAKULAM, KOCHI-11. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.K.J.KURIACHAN RESPONDENT(S)/APPLICANT AND 1ST OPPOSITE PARTY ------------------------------------------------------------------ 1. CHARLS PAUL, S/O.PAUL, THAYYIL HOUSE, MURAMPATHI P.O., KODENCHERRY (VIA), KOZHIKODE DISTRICT. 2. JONHY GEORGE, POWER PACK, 8/113 CONVENT CROSS ROAD, KOZHIKODE. R1 BY ADV. SRI.VINOD VALLIKAPPAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON I.A. NO.543/2006 IN M.F.A. NO. 57/2006 DISMISSED 02/12/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 57 OF 2006 = = = = = = = = = = = = = = = Dated this the 2nd day of December, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Kozhikode in W.C.C. 261/98. The applicant therein sustained employment injuries and the Tribunal awarded a compensation of Rs.80,176/- and it is challenging the same the insurance company has come up in appeal. 2. The main grievance of the insurance company is that the claimant in spite of direction did not appear before the Medical Board and thereafter the Compensation Commissioner relied upon a disability certificate issued by a Doctor which fixed his professional disability at 30% as a driver. Now it is a well settled principle that by virtue of the decision in M.F.A. 57 OF 2006 -:2:- Vanajakshan v. Joseph (2003 (2) KLT 462(FB) the loss of earning capacity has to be calculated on the basis of the entire work which one was capable of doing and not the work which he was doing. So the disability certificate relied upon by the Compensation Commissioner cannot be accepted for the reason that it only notes the loss of earning capacity as a driver. Further when an application was filed for examination by a Medical Board non co-operation also has to be taken into consideration. Therefore the award under challenge is liable to be interfered with and therefore I set it aside and I remit the case back to the Commissioner with a direction to the Compensation Commissioner to refer the person namely the claimant to a Medical Board for assessing the loss of earning capacity as contemplated in the decision reported in Vanajakshan v. Joseph. If he does not appear, adverse inference has to be drawn. The Compensation Commissioner is directed to fix a M.F.A. 57 OF 2006 -:3:- date of appearance for the parties and thereafter dispose of the matter as stated above. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.