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. 92 of 2006() -------------------------- WCC.288/2002 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND RESPONDENT. ---------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI 11. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT AND 1ST OPPOSITE PARTY RESPECTIVELY -------------------------------------------------------------------- 1. SUNNY A.J. S/O.JACOB, ANTHIKKAD HOUSE, KOONAMMOCHI, THRISSUR. * 2. K.V.SIVASANKARAN, KIZHAKKOOT HOUSE, NAMBAZHIKKAD, CHAVAKKAD, THRISSUR (DELETED) ** THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03/01/2008 ON I.A. 3056/2007. R1 BY ADV. SRI.JIJO PAUL 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.983/2006 IN M.F.A. NO. 92/2006 DISMISSED 02/12/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 92 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, Thrissur in W.C.C. 288/02. The claimant who sustained injuries in a road accident while working as a conductor has been awarded a compensation of Rs.56,519/- as compensation. A disability certificate was produced showing the loss of earning capacity at 18%. There was a request by the insurance company to refer him to a Medical Board. It was rejected. Thereafter the Compensation Commissioner fixed the loss of earning capacity at 14% and awarded a compensation. It is against that decision the appeal is preferred. 2. It has to be stated that by virtue of the decision of the Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462) the M.F.A.. 92 OF 2006 -:2:- principles to be followed is to assess the loss of earning capacity with respect to the entire work which one was capable of doing and not the work which he was capable of doing. In the light of the fact that the approach has not been made in that respect by the Compensation Commissioner, the award passed by the Compensation Commissioner cannot be sustained. Therefore the award under challenge is set aside and the matter is remitted back to the Compensation Commissioner with a direction to the Commissioner to refer the applicant to a Medical Board for examination to assess the loss of earning capacity as laid down in the decision in 2003 (2) KLT 462 and thereafter permit the parties to let in evidence in support of their respective contentions and then dispose of the matter in accordance with law. The Compensation Commissioner shall issue notice to the parties fixing the date of appearance. M.N. KRISHNAN, JUDGE. ul/-