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2006 Supreme(Ker) 584
Judges : THOTTATHIL B.RADHAKRISHNAN
Leela, S/o.Kumaran - Appellant
Versus
Jaison Francis - Respondent
Case No : MFA No.163 of 2005
Decided On : 09/26/2006
Advocates Appeared :
For the Petitioner : George Cherian (Thiruvalla), Advocate. For The Respondent: P.V. Baby, Advocate.
The determination of loss of earning capacity should be referred to the Medical Board as per relevant legal precedent.
Headnote:
Insurance - Workers' Compensation - Determination of Loss of Earning Capacity
Fact of the Case:
The appellant, an insurer, appealed a Workers' Compensation Case contending that the applicant's injury did not occur during the course of employment and that the determination of the percentage of disability was not appropriately done.
Finding of the Court:
The court confirmed that the claimant was injured during the course of her employment and was covered by the policy. However, the determination of loss of earning capacity in excess of 50% was set aside and the case was remitted for re-consideration. The claimant was entitled to withdraw 50% of the amount deposited by the insurer, and the commissioner was directed to expedite the final disposal of the matter.
Issues: The issues involved the determination of whether the claimant was injured during the course of employment and the appropriate method for determining the percentage of disability and loss of earning capacity.
Ratio Decidendi: The court relied on the testimony of witnesses, the F.I.R., scene Mahassar, charge sheet, and accident register cum wound certificate to confirm that the claimant was injured during the course of employment. Additionally, the court held that the determination of loss of earning capacity should have been referred to the Medical Board as per the relevant legal precedent.
Final Decision: The court confirmed the coverage under the policy, set aside the determination of loss of earning capacity in excess of 50%, and remitted the case for re-consideration. The claimant was entitled to withdraw 50% of the amount deposited by the insurer, and the commissioner was directed to expedite the final disposal of the matter.
This is an appeal by the second opposite party, the insurer in a W.C Case.
2. The first contention of the appellant is that the applicant was only a pedestrian and the story that she was injured while in the course of employment have not been appropriately considered by the Commissioner. Having regard to the nature of the finding rendered by the Commissioner under issues 1 and 2 on the basis of the testimony of AW2, Ext. A1, F.I.R., Ext. A2 Scene Mahassar and Ext. A4 charge sheet and also Ext. A7 Accident Register cum wound certificate, I do not find any substantial question of law arising for decision on the finding of the Commissioner, that applicant was injured during the course of employment.
3. The second contention raised by the appellant is that the Commissioner erred in the matter of determining the percentage of disability by acting on the certificate of doctor by merely slashing the percentage of disability and loss of earning capacity determined by the doctor, instead of referring the claimant to the medical board. In support of this contentions the learned counsel for the appellant relied on the decision of Full Bench of this Court in New India Assurance Co. Ltd., vs. Sreedharan (1995 (1) KLT 275). Having regard to the ratio of the said decision, the Commissioner, having come to the conclusion that he percentage of loss of earning capacity determined by the doctor in the disability certificate cannot be acted upon, it was appropriate that the claim was referred for determination of loss of earning capacity by the Medical Board.
In the result,
a) The findings that the claimant was injured during the course of her employment and that she is covered by the policy are confirmed.
b) The finality of the award in so far as it relates to the determination of loss of earning capacity in excess of 50% of what has been fixed is set aside and the case is remitted for re-consideration of the Tribunal. It is further directed that the re-determined compensation, following the remit, shall not be less than 50 per cent of what has been fixed now.
c) The claimant will be entitled to withdraw 50 per cent of the amount deposited by the insurer.
d) The commissioner will expedite final disposal of the matter, following this order of remit.
