IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 MFA.No. 104 of 2007(A) -------------------------- WCC.87/2001 of W.C.C.,THRISSUR .................... APPELLANT(S): 3RD OPPOSITE PARTY; ------------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): APPLICANT AND 1ST AND 2ND OPPOSITE PARTIES: ------------------------------------------------------------------------------ 1. K.M.ASHOK KUMAR, S/O.K.MUTHUKUMARAN, KURUPATH HOUSE, ALLAMPALLAM, KALLEPPULLY, PALAKKAD. 2. P.A.AZEES, PAZHERI HOUSE, ALLAMPALLAM, KALLEPPULY,PALAKKAD. 3. THE NEW INDIA ASSURANCE COMPANY LTD., PALAKKAD. ADV. SRI.JACOB SEBASTIAN FOR R1 SRI.LAL GEORGE FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A.(W.C.C.) NO. 104 OF 2007 = = = = = = = = = = = = = = = Dated this the 3rd day of February, 2009 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.87/01. The claimant was a driver and the car driven by him met with an accident when it collided with a lorry and he sustained injuries. The Compensation Commissioner found the loss of earning capacity at 80% and awarded the compensation and directed the appellant, United India Insurance Company to pay the amount. It is against that decision the insurance company has come up in appeal. 2. A perusal of the order on issue No.4 would reveal that the Compensation Commissioner has not followed the dictum laid down in Vanajakshan v. Joseph (2003 (2) KLT 462(FB). It is held in that decision that, “The compensation has to be determined with reference to the loss in earning capacity and not the ability to perform the duties of the job, which was M.F.A.(W.C.C.) NO. 104 OF 2007 -:2:- being done by the workman at the relevant time. The compensation has to be assessed on the basis of the percentage of the loss earning capacity. While determining the loss of earning capacity the authority has to keep in view the loss of capacity of a workman “for all work which he was capable of performing” and not for the work which he was actually doing. The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. 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.” What is laid down in that decision is that it is not the disability that is occasioned on a particular job is to be taken into consideration, it is the disability to do all the work which he was capable of doing at the time of the accident that is to M.F.A.(W.C.C.) NO. 104 OF 2007 -:3:- be considered. So the loss of earning capacity has to be assessed on that basis for which medical evidence should be made available. Therefore the order passed by the Compensation Commissioner is incorrect and it requires interference. The question of interest and that liability also need reconsideration in the light of the various decisions of this Court as well as of the Apex Court. Therefore the order under challenge is set aside. The matter is remitted back to the Commissioner with a direction to refer the applicant therein to a Medical Board and get the disability assessed, ie. the loss of earning capacity in the light of the factum laid down in 2003 (2) KLT 462 and thereafter permit both sides to adduce evidence and then dispose of the matter in accordance with law. The Workmen's Compensation Commissioner is directed to issue notice fixing the date of appearance of parties. The MFA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-