Remanded

New India Assurance Co. Ltd. v. Prajesh Chandran and Another

Kerala HC2 Aug 2012MFA (ECC)/52/2011

Case brief

AI extract

What is this about?

In this miscellaneous first appeal, the High Court of Kerala quashed the Workmen's Compensation Commissioner's award regarding compensation quantum. The Court held that loss of earning capacity must be assessed based on the claimant's work capabilities at the time of the accident, not just current ability. Consequently, the Court reduced the loss of earning capacity from 100% to 30% and remitted t

What did the court decide?

The impugned award was vacated to the extent of the loss of earning capacity assessment, reduced to 30%, and the matter remitted to the Commissioner for redetermination of compensation.

New India Assurance Co. Ltd. Vs Prajesh… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 2ND DAY OF AUGUST 2012/11TH SRAVANA 1934

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MFA.No. 52 of 2011 (F)

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WCC.372/2008 of COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD

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APPELLANT(S)/2ND OPP. PARTY:

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NEW INDIA ASSURANCE CO. LTD., FIRST FLOOR, POOTHERY BUILDING, MARKET ROAD, FEROKE-673 631.

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BY ADV. SRI.RAJAN P.KALIYATH

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RESPONDENT(S)/APPLICANTS & OP1:

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1. PRAJESH CHANDRAN @ PRASHISH, S/O.RAMACHANDRAN @ VELAYUDHAN, PULLAKUNNU HOUSE, PONNAMKKODE, THACHAMPARA POST, PALAKKAD-678 593.

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2. V.SADIQ ALI, S/O. V.HASSAN, PARTNER, GLOBAR CARRIERS NO.3816/1, SITE NO.18, INDUSTRIAL "A" LAYOUT, BANNIMANTAP, MYSORE, KARNATAKA-570 015.

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R1 BY ADV. SRI.U.BALAGANGADHARAN R2 BY ADV. GOVERNMENT PLEADER

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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LSN

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THOTTATHIL B. RADHAKRISHNAN &

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K.VINOD CHANDRAN, JJ.

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MFA No.52 OF 2011

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Dated this the 2^nd day of August, 2012

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JUDGMENT

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Thottathil B. Radhakrishnan, J.

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Insurer appeals against an award of the Workmen's Compensation Commissioner. First respondent applied for compensation on the ground that he suffered injuries in the course of employment as a heavy vehicle driver. The insurer's challenge is to the fixation of the quantum of compensation on

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the basis that the loss of earning capacity suffered by the claimant is 100%.

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We have seen different contradicting materials, which

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we would discuss as we proceed.

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The injuries suffered by the claimant are noted in the

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impugned award as follows:-

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a) Fracture acetabulum with posterior dislocation of hip right with sciatic N. Plasty.

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b) Inferior Pubic Rami fracture right.

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c) 9, 10, 11 Rib fracture left.

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d) CLW-Scalp (8 x 1 c.m.) and cheek right 6 x 1 c.m. e) Laceration right infrapatellar region.

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f) Multiple abrasions.

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MFA No.52/2011 -2-

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g) Chest injury h) Head injury i) ENT Ophthal injury.

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4. Ext.A11 treatment-cum-disability certificate issued by

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a Consultant in Orthopaedics on 4.4.2007 shows the treatment and the ultimate conclusion of that consultant about the disability. It was assessed that the applicant has permanent physical impairment of 10% of right lower limb. Such assessment is made with reference to Manual for Doctors to Evaluate Permanent Physical Impairment; WHO, AIIMS, DGHS.

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Ext.A16 is the disability certificate issued by another

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consultant in Orthopaedics. The permanent physical disability is shown in that certificate at 21% and the loss of earning capacity

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was determined at 40%, noticing that the disability will affect his profession “as a lorry driver to a considerable extent”.

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Ext.X1 medical certificate issued by the Special Medical Board, District Hospital, Palakkad showed the following:-

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“He was involved in a Road Traffic Accident on 28.8.2005 and sustained acetabular fracture with posterior dislocation Rt. Hip with sciatic nerve

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MFA No.52/2011 -3-

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pulsy, multiple rib fracture interior pubic rami fracture Rt. and multiple lacerated wound and now on examination he has shortening of Rt. Lower limb, partial anidyosis of Rt. Hip joint and secondary arthritis Rt. Hip and pain Rt. Hip on sitting for long time and percentage of disability is assessed as 18% (eighteen percent) and loss of earning capacity is assessed as 100% (as a driver of Heavy vehicle.”

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In view of the aforesaid conflict of opinion as

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contained in the medical certificates, pending this appeal, we directed examination of the claimant by the Medical Board of the District Hospital, Palakkad. Certificate was issued by that Medical Board saying that loss of earning capacity as a heavy vehicle driver is 80%, however that, the loss of earning capacity may be assessed by the Vocational Rehabilitation Councellor at Medical College Hospital.

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In the meanwhile, the learned counsel for the insurer made certain efforts over the internet and came out with materials showing that the claimant had obtained renewal of his “heavy vehicle motor driving licence” and even now has a live licence to that effect. We therefore called upon the Assistant

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MFA No.52/2011 -4-

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Licensing Authority, Mannarghat, to file an affidavit. The affidavit of that officer of the Motor Vehicles Department and materials placed herewith show that, licence was issued and the claimant has a licence to drive heavy vehicles even now. The licensing authority produced materials to show that the claimant had made declaration supported by medical certificate to the effect that he had no disability and is entitled to heavy duty driving licence. With all these materials and because we were not satisfied with the determination of disability by the Palakkad Medical Board, we thought it fit to require the claimant to appear before us. He appeared before the Bench (in Chambers). We did not then put it on record the impression, even on a layman's perception, that we had by seeing him. We immediately passed an order, in his presence, requiring him to be examined by the Medical Board of the General Hospital, Ernakulam.

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Following the above, the Board in the General Hospital, Ernakulam examined the claimant and the Superintendent, as its Chairman, has now placed a report through the Registrar General of this Court. As regards the

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MFA No.52/2011 -5-

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claimant, that report shows the following:-

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He is having a permanent disability of right hip which is progressive. His disability as to whole body is 15% at present.

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2.He cannot drive a heavy vehicle safely with his permanent disability and hence his loss of earning capacity as a heavy vehicle driver is 100%.

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3.With his disability at present, loss of earning capacity otherwise than a heavy vehicle driver comes to around 30%.

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Having seen the aforesaid materials, we are clear in

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our mind that the Commissioner erred in law in the matter of fixing the compensation. The loss of earning capacity could not have been determined above 30%. We are fortified in taking this view by the decision of the Full Bench of this Court in Vanajakshan Vs. Joseph (2003 (2) KLT 462) . In the case in hand, the claimant was 23 years at the time of the accident. He was a heavy duty driver. The compensation to be assessed is on the basis of the percentage of loss of earning capacity. Such assessment, going by the aforesaid precedent, has to be for all work which he was capable of performing at the time of accident and not merely for the work which he was actually

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MFA No.52/2011 -6-

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doing. While the question would not be as to what work he can do now, it would obviously be as to what all works he was capable of performing at the time of the accident. This is the crux of that precedent. Applying such yardstick, the medical certificate issued by the Medical Board of the General Hospital, Ernakulam on 13.7.2012 is to be accepted and the loss of earning capacity of the claimant is to be taken as only 30%.

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In the fitness of things, we deem it appropriate that

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the Commissioner recalculates the compensation in the light of what is stated above, taking the loss of earning capacity as 30% only.

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Any amount lying in deposit shall not be released until such redetermination.

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In the result, this appeal is ordered vacating the impugned award to the aforesaid extent and remitting the case to the Commissioner to refix the compensation, applying all the other components as determined as per the impugned award

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and taking the loss of earning capacity at 30%. The parties are directed to mark appearance in the office of the Commissioner on 20.8.2012.

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MFA No.52/2011 -7-

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Before parting, we record our appreciation for the efforts taken by the learned counsel for the insurer in tracing out materials from the Motor Vehicles Department to diffuse and dislodge the contentions of the claimant.

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The learned Government Pleader will instruct the officer concerned, in the Motor Vehicles Department, to initiate appropriate action in accordance with law to ensure that such licences are not issued and the licence issued to the claimant, on the basis of unacceptable materials, is recalled.

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Appeal ordered accordingly.

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THOTTATHIL B. RADHAKRISHNAN, JUDGE.

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K.VINOD CHANDRAN, JUDGE.

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okb.

New India Assurance Co. Ltd. v. Prajesh Chandran and Another

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Prajesh Chandran and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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