IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 MFA.No. 68 of 2008(G) -------------------- WC.300/2000 of W.C.C.,KOZHIKODE .................... APPELLANT(S): 2ND OPPOSITE PARTY --------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., VADAKARA NOW REP. BY ITS MANAGER, REGIONAL OFFICE, BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S): APPELLANT ------------------------ A.T.SAJEEVAN, S/O.GOPALA KURUP, PADINHAR E KAKKAPOYIL HOUSE, MELUR PO.,KOYILANDY. ADV. SRI.P.R.SREEJITH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A.(W.C.C.) NO. 68 OF 2008 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2008. J U D G M E N T This appeal is preferred against the order of the Deputy Labour Commissioner, Kozhikode in W.C.300/00. The claimant, an auto driver sustained injuries in a road accident. The workmen Compensation Commissioner fixed his loss of earning capacity at 25% and applied the appropriate index and awarded the compensation. It also granted interest from the date of accident. Aggrieved by the said decision the insurance company has come up in appeal. The learned counsel for the insurance company would contend that the compensation Commissioner had gone wrong in assessing loss of earning capacity at 25%. A perusal of the order itself would reveal that there was no fixation of the loss of earning capacity by the Doctor. It is true that he was examined. The Court below took the view that being an auto driver his loss of earning capacity has to be fixed at 25%. The matter has been considered by this Court in the decision reported in M.F.A 68 OF 2008 -:2:- Vanajakshan v. Joseph (2003 (2) KLT 462(FB). This Court held that, “The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of the ability to perform the duties on a particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties.” 2. So, incapacity has to be assessed with respect to all work which he is capable of doing and not with respect to the work which he was doing. Unfortunately, the Court below did not consider this aspect and passed the order. I am informed that an application was filed for sending the person to a Medical Board to assess his loss of earning capacity. It would have been profitable if it had been done by the Court below. Therefore the order passed by the Court below requires interference and the order passed is set aside and the matter is remitted back for fresh consideration in the light of the principles mentioned above. The Court below M.F.A 68 OF 2008 -:3:- shall also send him to a Medical Board for assessing the loss of earning capacity as stipulated in the Full Bench judgment of this Court. Thereafter, the Court shall consider and dispose of the matter in accordance with law. 3. So far as the question of interest is concerned it is decided by the Division Bench of this Court in the decision reported in National Insurance Co. Ltd. Rekha 2007 (4) KLT 386. The Division Bench of this Court considered the latest Supreme Court decision and also a larger Bench decision of the Apex Court and thereafter held that the claimant is entitled to interest from the date of accident. So that contention of the insurance company cannot be entertained. 4. The Compensation Commissioner is directed to issue notice to the parties intimating the date of hearing. Being an old matter, it may be disposed of within two months from the date of first appearance of the parties. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-