IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 MFA.No. 158 of 2010() ------------------- WCC.129/2004 of W.C.C.,THRISSUR ............. APPELLANT / 2ND OPPOSITE PARTY ---------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT / APPLICANT / 1ST OPPOSITE PARTY -------------------------------------------------------------------------- 1. RADHAKRISHNAN, S/O.BALAN, CHIRUKANDATH HOUSE, P.O.KANDASSANKADAVU, PIN 680613, THRISSUR DISTRICT. 2. A.S.SANTHOSHKUMAR, S/O.SUBRAMANIAM, ALAKKAL HOUSE, P.O.NATTIKA, PIN 680556. BY THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- MFA.No. 158 of 2010 -2- ORDER ON IA.NO. 2278/2010 IN MFA.No. 158/2010 DISMISSED 20/09/2010 SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 158 OF 2010 = = = = = = = = = = = = = = = Dated this the 20th day of September, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C. 129/04. The applicant sustained injuries as an employee and moved an application under the Workmen's Compensation Act for compensation. He had suffered a depressed fracture of the frontal bone. The Medical Board which examined him found his permanent neurological disability at 20% and loss of earnings capacity as a auto rickshaw driver at 20%. It has also granted interest at the rate of 12% from the date of accident. Challenging the both, the insurance company has come in appeal. M.F.A.. 158 OF 2010 -:2:- 2. I feel that since there is non compliance of the directions of this Court as held in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB) the matter can be remanded at the admission stage itself without notice to the other side. The point is that the claimant is an auto rickshaw by profession and the loss of earnings capacity of 20% is assessed as an auto driver. In Vanajakshan v. Joseph (2003 (2) KLT 462(FB) the Full Bench of this Court held that while assessing the loss of earning capacity, the loss of earning capacity has to be calculated on the basis of the whole work which one was capable of doing and not the work which he was doing. The loss of earning capacity has to be assessed in that back ground and thereafter opportunities have to be given to the parties to adduce evidence. But unfortunately the Medical Board M.F.A.. 158 OF 2010 -:3:- had issued a certificate which found the loss of earning capacity only as an auto driver. Therefore the matter requires reconsideration in the light of this decision. 3. The next point argued is regarding the interest. It is submitted that the liability to pay interest would arise only when the amount is quantified and therefore in the light of the latest decision of the Hon'ble Supreme Court interest can be awarded only from the date of passing of the award. In National Insurance Co. Ltd. Rekha 2007 (4) KLT 386 the matter has been considered by the Division Bench of this Court by also making reference to the Constitution Bench decision of the Hon'ble Supreme Court reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222). It has been held in that case that interest has to M.F.A.. 158 OF 2010 -:4:- be given from the date of accident. Thus the Division Bench also considered the question and held that when there is a difference between the Constitution Bench decision and a later Division Bench ruling of the Hon'ble Supreme Court the Constitution Bench ruling has to prevail. In New India Assurance Company v. Budh Ram and another(2009(4) TAC 614)(HP) the Himachal Pradesh High Court has taken the same view. Therefore the grant of interest at the rate of 12% from the date of accident cannot be found fault with. 4. Therefore the order under challenge is set aside to the limited extend of the quantum and the Workmen's Compensation Commissioner is directed to refer the applicant to a Medical Board in order to assess the loss of earning capacity as envisaged in Vanajakshan v. Joseph M.F.A.. 158 OF 2010 -:5:- (2003 (2) KLT 462(FB), thereafter parties be permitted to adduce evidence in support of their respective contentions and an order be passed in accordance with law. Since I am disposing of the appeal in the admission stage itself the Compensation Commissioner is directed to issue notice to the claimant and also fix a date of hearing for the said purpose. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-