IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 MFA.No. 198 of 2006 ---------------------------------- WCC.107/2000 of W.C.C.,ERNAKULAM .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY THE AUTHORISED SIGNATORY, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, KOCHI-682 018. BY ADV. SRI.M.JACOB MURICKAN RESPONDENT(S): APPLICANT & 1ST OPPOSITE PARTY ------------------------------------------------------------------------------- 1. K.K. ANANDAN, S/O.M.I. KESAVAN, KALLUMKAL HOUSE, THOTTAMON P.O., RANNY, PATHANAMTHITTA DISTRICT. 2. M.O. ABRAHAM, MANIMALAYATH STORES, THOTTAMON P.O., RANNY, PATHANAMTHITTA DISTRICT. ADV. SRI.JOMY GEORGE FOR R2 SRI.ANIL S.RAJ FOR R1 SMT.MANJUSHA MOHANDAS FOR R1 SMT.ANILA PETER FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A.(W.C.Act). NO. 198 OF 2006 F --------------------------------------------------- Dated this the 12th June, 2009 JUDGMENT Joseph, J. This is an Appeal filed under Section 30 of the Workmen's Compensation Act, 1923, against the order of the Commissioner awarding a compensation of Rs.1,16,784/=. Learned counsel for the appellant Insurance Company submits that the injury is not scheduled injury and, therefore, it attracts Section 4(1)(c)(ii) of the Act. This means, there must be evidence of loss of earning capacity. In this case, it is pointed out that the Commissioner relied upon the Report of the Medical Board which assessed the permanent disability at ten per cent and without there being any assessment of loss of earning capacity, the Commissioner by himself has proceeded to assess the per centage of earning capacity at fifty per cent. This is impermissible, he contends MFA(WC.Act).198/06F 2 and contrary to the dicta laid down by the Full Bench of this Court in New India Assurance Co. Ltd. v. Sreedharan (1995 (1) KLT 275). He referred us to paragraphs 20 and 21 in this regard. We notice that in the order, the Commissioner found that the Medical Board did not specifically mention the per centage of loss of earning capacity. Without anything more, the Commissioner straight-away proceeded to fix the loss of earning capacity as 50 per cent. We would think that the Commissioner has acted opposed to the law laid down by this Court. In such circumstances, the order is unsustainable. The Commissioner could have got a Report regarding the loss of earning capacity from the Board and acted on the basis of the same. Learned counsel for the appellant also points out that this is a case where the appellant is permitted to recover the amount in terms of the judgment of the Apex Court in New India Assurance Company, Shimla v. Kamla & Others (AIR 2001 SC 1419). This is on the basis that there was no licence. It is submitted by the learned counsel for the appellant that the said finding may not be MFA(WC.Act).198/06F 3 disturbed, which is a view taken following the Judgment of the Apex Court in New India Assurance Company, Shimla v. Kamla & Others (AIR 2001 SC 1419). He also points out that the view of this Court that if there is subsequent renewal, it will relate back to the past and it will cover the period during which the accident took place, may not hold good in the light of the decision in Ishwar Chandra & Another v. Oriental Insurance Company Ltd. & Others (2007 (10) SCC 650). In the light of this, we feel that the Appeal should be allowed in regard to the quantum of compensation fixed, with liberty to the parties to adduce fresh evidence regarding the per centage of loss of earning capacity. The Appeal is allowed and the order in so far as it relates to the determination of the compensation is set aside. We leave undisturbed the permission given to the appellant to recover the amount as contained in the impugned order. We direct the Commissioner to refer the question relating to the MFA(WC.Act).198/06F 4 per centage of loss of earning capacity to the Medical Board and to assess the compensation payable in accordance with law, thereafter. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge