The court found that occupational disability for a head load worker is 100%, despite a physical disability percentage of 26%, entitling the appellant to increased compensation.

JUDGMENT

This appeal arises out of the order passed by the Industrial Tribunal and Employees Compensation Commissioner, Kozhikode in E.C.C No.9 of 2022.

2. The brief facts necessary for disposal of the appeal are as follows:

The appellant herein is the applicant in E.C.C. No.9 of 2022.

He sustained injuries in an accident on 27.1.2021 at 4.45 p.m, while he was loading coconut shells to the lorry owned by the 1st respondent. The 2nd respondent is the insurer in respect of the vehicle owned by the 1st respondent. The Employees Compensation Commissioner (‘the commissioner’, for short) found that the appellant was a loading and unloading worker in the lorry under the first opposite party and an employee in terms of Section 2 (1)(dd) of the Employees’ Compensation Act who sustained injuries out of the accident during the course of his employment on 27.1.2021. The Commissioner awarded an amount of Rs.3,50,228/- towards compensation for disability and Rs.2,26,285/- towards medical expenses as against the claim of rupees Ten Lakhs. Aggrieved, the present appeal is preferred.

3. Heard Sri.A.V.M. Salahudheen, the learned counsel appearing for the appellant and Sri. P. Jacob Mathew, the learned counsel appearing for the 2nd respondent.

4. On 31.7.2025, this appeal was admitted on the following substantial questions of law:

“ Whether the Employees Compensation Commissioner has erred in taking loss of earning capacity only at 26%, when the Medical Board has certified occupational disability at 100% in the Ext.X1 Medical Report?”

5. Sri. A.V.M. Salahudheen, the learned counsel for the appellant handed over before this Court a certified copy of the proceedings of the Medical Board, which was constituted as per orders in E.C.C. No.9 of 2022. In the said report, it is specifically mentioned that as a head load worker, the appellant has 100% occupational disability. Therefore, it is contended that, going by the principles laid down by the Division Bench of this Court inNational Insurance Company Ltd. vs. T.T. Mammu and Another [2012 (2) KHC 11] and also the decision of the Supreme Court in Indra Bai vs Oriental Insurance Company Ltd. & Another [2023 (8) SCC 217] , the tribunal ought to have taken 100%

occupational disability.

6. However, the learned counsel for the 2^nd respondent disputed the aforesaid proposition and contended that the tribunal has not committed any irregularity in taking 26% disability, which is reported by the Medical Board. Unlike in cases where the claim for compensation arises under the Motor Vehicles Act, the claim under the Employees’ Compensation Act will have to be strictly confined to the schedule to the Employees’ Compensation Act, which prescribes the percentage of disability. Therefore, it is contended that the findings rendered by the trial court are perfectly correct.

7. On consideration of the rival submissions raised across the Bar, this Court finds that the only dispute which requires to be resolved by this Court is whether the appellant is entitled to reckon the occupational disability at 100%. This Court finds considerable force in the submissions of the learned counsel for the appellant that, going by the principles laid down by the Division Bench in T.T. Mammu (Supra) and also in Indira (Supra) rendered by the Supreme Court, the appellant is entitled to get occupational disability (earning capacity) as noticed by the Medial Board. It is beyond dispute that, as a head load worker, though the appellant may have only 26% physical disability, considering his avocation, the o