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 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 MFA.No. 44 of 2007() -------------------- WCC.525/2003 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY. ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS: APPLICANT AND 1ST OPPOSITE PARTY RESPECTIVELY. ------------------------------------------------------------------------------------------------------ 1. RAMAKRISHNAN, S/O.SANKARAN, ELAMTHURUTHY HOUSE, PERINGANOOR P.O., PERAMANGALAM, THRISSUR. 2. THE SECRETARY, ALL KERALA DIAMOND ARTISANS ASSOCIATION, MUNDUR, THRISSUR. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2 SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 44 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2011 JUDGMENT K.M. Joseph J., The appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The first respondent/claimant claimed compensation on the basis that in an accident while he was engaged in his employment as the driver of the car owned by the second respondent, he suffered injuries. Accordingly compensation was claimed, which was allowed in a sum of Rs.1,35,190/- with simple interest of 12% per annum. The Commissioner has fixed loss of earning capacity as 40%. AW2 is the Medical practitioner, who has certified Ext.A6 showing the loss of earning capacity. AW2 noted in Ext.A6 that after the accident he has recurrent ear discharge (right) and tinuits. M.F.A.No. 44 of 2007 :2: On examination, the right tympanic membrane is retracted. Audiogram shows severe missed hearing loss of right ear moderate severe seniory neural hearing loss of left ear. He has assessed permanent loss of earning capacity as 50%. The appellant filed a petition for referring the matter to the Medical Board. It is stated in the order that after hearing the parties and considering all aspects of medical evidence and nature of the job, earning capacity is decided as 40%. 2. We heard learned counsel for the appellant and learned counsel for the respondent. 3. Learned counsel for the appellant submits that the Commissioner has acted illegally in taking the loss of earning capacity as 40%. According to her, the applicant should have been referred to the Medical Board. It is further pointed out that the loss of earning capacity ascertained is loss of earning capacity as a driver, which is impermissible in law. 4. Learned counsel for the claimant would content that in the circumstances of this case, no interference is called for. M.F.A.No. 44 of 2007 :3: 5. After hearing learned counsel for the parties, we are of the view that the loss of earning capacity is fixed as 30%. On the said basis, the claimant is entitled to a compensation of Rs.1,01,392/- with interest as ordered by the Commissioner. 6. Accordingly the M.F.A. is partly allowed and the appellant is directed to pay Rs.1,01,392/- along with interest as ordered by the Commissioner. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/