IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 MFA.No. 121 of 2009(F) --------------------- WCC.460/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ---------------------------------------- THE NATIONAL INSURANCE CO. LTD., THRISSUR, REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANT/IST OPPOSITE PARTY ------------------------------------------------------------ 1. SINEESH, S/O.KUTTIKRISHNAN, CHAKYAVIL HOUSE, VALLOOR P.O., SANKARAMANGALAM VIA., PATTAMBI, PALAKKAD DISTRICT. 2. ABDUL MAJEED, S/O.ALIKUTTY, PALATHINGAL HOUSE, PATTAMBI, PALAKKAD. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 121 OF 2009 = = = = = = = = = = = = = = = Dated this the 21st day of October, 2009. J U D G M E N T This appeal is preferred by the insurance company against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.460/03. The applicant sustained injuries in a road accident as a result of which he had sustained a crush injury on the left foot and multiple bodily injuries. A disability certificate was produced and the Doctor assessed the loss of earnings capacity at 20% but the Compensation Commissioner took it as 10% and passed an order and also directed the interest to be paid at the rate of 12% from the date of the accident. Two substantial questions of law that had been formulated as (i) and (ii) are as follows. “(i) Has not the Commissioner erred in fixing loss of earning capacity arbitrarily at 10% after rejecting Ext.A5 certificate especially when the injury suffered by the claimant was a scheduled injury? M.F.A. 121 OF 2009 -:2:- (ii) Has not the Commissioner went wrong in dismissing the application to refer the applicant to Medical Board especially when the Commissioner rejected the oral evidence as well as Ext.A5 issued by AW2?” 2. Though the respondents have received notice in the appeal they have not chosen to appear before me and therefore heard the learned counsel for the appellant. I will answer the substantial questions of law together. 3. The Compensation Commissioner had calculated the loss of earnings capacity at 10% to arrive at a decision. It has been time and again held by the Courts that the Compensation Commissioners are not expected to assess the disability by their own unless there is a concrete medical evidence available before it. Or in other words a Compensation Commissioner's opinion cannot be above the opinion of a medical expert unless it is proved to be wrong. In a recent decision of this Court reported in Vanajakshan v. Joseph (2003 (2) KLT 462) this Court held that the loss M.F.A. 121 OF 2009 -:3:- of earning capacity have to be calculated u/s 4(i) and (ii) not on the basis of the work which a person was doing at the time of the accident and should be on the basis of the whole work capable of being done by him at that relevant time. Therefore the matter has to be considered in that perspective also when one has to find loss of earnings capacity u/s 4(1) (c) of the Workmen's Compensation Act. Learned counsel for the insurance company had pointed to me that the main injury sustained in this case even as per the petition are loss of left middle toe and tip of 4th toe. They are schedule injuries coming u/s II of the Workmen's Compensation Act and the relevant number in the schedule is Sl.No.43 which gives a maximum loss of earnings capacity of 5%. The Commissioner did not advert at all to this fact and he also did not attempt to find out the impact of the crush injury over the foot. If the disability for the person is on account of the loss of toe by amputation then it will come within the schedule injury and then there is no question of referring him to a medical board for that purpose. But suppose there is M.F.A. 121 OF 2009 -:4:- loss of toe by amputation coupled with other injuries which leads to incapacitation of the person then a situation may arise where the Court has to find out the loss of earnings capacity on the basis of both. Therefore it is a matter which has to be considered factually and therefore I feel this is a fit case where the Compensation Commissioner shall refer the person to a Medical Board and obtain a report in the light of the principles laid down in Vanajakshan v. Joseph (2003 (2) KLT 462) and before doing it can hear the counsel for both the sides to find out whether that injury will come only under a schedule injury and in such a situation he shall not refer the matter to the Medical Board at all. But if the Court entertains a feeling that it will come under both schedule and non schedule injuries then the matter can be disposed of after referring to the medical board and thereafter permitting the parties to challenge the said report. So the order passed by the Workmen's Compensation Commissioner has to be set aside and the matter has to be remitted back to the Compensation Commissioner. M.F.A. 121 OF 2009 -:5:- Since the question of fixing the compensation itself is under challenge then the question of interest can be decided afresh by the Compensation Commissioner in accordance with the latest decision available on the point on the date of that decision. The Workmen's Compensation Commissioner shall issue notice to the parties intimating the date of appearance. M.N. KRISHNAN, JUDGE. ul/-