IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 MFA.No. 57 of 2007(A) -------------------- W.C.C.365/2003 of WORKMEN'S COMPENSATION COMMISSIONER. THRISSUR. APPELLANT(S): 3RD RESPONDENT. ----------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): APPLICANT AND RESPONDENTS 1 & 2 RESPECTIVELY. ------------------------------------------------------------ 1. SURESH K.A., S/O.APPUNNY EZHUTHACHAN, KURUPPAN VALAPPIL HOUSE, P.O.PURANATTUKARA, THRISSUR. 2. VIJAYALAKSHMI, KURUPPAN VALAPPIL HOUSE, P.O.PURANATTUKARA, THRISSUR. 3. JOSEPH A.T., ALOOR HOUSE, P.O.PURANATTUKARA, THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.869 OF 2007 IN M.A.C.A. NO. 57 OF 2007 DISMISSED 26/9/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A.(W.C.C.) NO. 57 OF 2007 = = = = = = = = = = = = = = = Dated this the 26th day of September, 2008. J U D G M E N T This appeal is preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.365/03. The applicant, a driver of an auto rickshaw, met with an accident resulting in injuries to him. He had sustained a fracture P1 base little finger right, sutured injury on right hand and heavy shock. He claimed a total compensation of Rs.2 lakhs. The insurance company disputed the employer-employee relationship as well as the quantum. 2. Just because the wife happens to be the owner of the auto rickshaw it will not take away the relationship of employer-employee when husband is earning his livelihood from driving that auto rickshaw. Therefore I am not prepared to accept the contention regarding the non- employer-employee relationship as contended by the insurance company. M.F.A.(W.C.C). 57 OF 2007 -:2:- 3. The next question is regarding the quantum. The quantum is based on the percentage of disability. A Medical document was produced whereby the permanent disability was assessed at 7% and loss of earnings capacity as an auto rickshaw driver at 21%. An application was filed by the Company to refer to a Medial Board and at that time the Court without referring to the Medical Board fixed the loss of earning capacity at 15% and calculated the compensation. Learned counsel for the insurance company had brought to my attention to the first Schedule Part II of the Act which deals with percentage of loss of earning capacity even when it is amputated. Schedule 1 Part II, 35 deals with ring or little finger when it is amputated as a whole and the percentage of loss of earning capacity would be only 7%. Here, there is only a fracture of the little finger and so even applying the principle of loss of earning capacity with reference to amputation of the ring or little finger it cannot be more than 7%. Therefore fixing of loss of earnings capacity at 15% is incorrect and it is liable to be set aside. M.F.A.(W.C.C). 57 OF 2007 -:3:- When loss of earning capacity is fixed at 7% and compensation is calculated it would come to Rs.24,938/- which I round as Rs.25,940/-. So the award passed by the Compensation Commissioner is modified and the amount is fixed as Rs.25,940/- with 12% simple interest on the said amount from the date of accident till it is paid. If any amount is already paid that may be given credit to and the balance if any need to be deposited and let it be disbursed in accordance with law. The appeal is accordingly allowed and disposed of. M.N. KRISHNAN, JUDGE. ul/-