Basheer Kutty v. S. SREEKUMAR @ MOHANAN SREELAKSHMI and Oriental Insurance Company Ltd.

**MFA(ECC) NO.1/2018** **1** 2025:KER:29191 **==> picture [58 x 57] intentionally omitted <==** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **THURSDAY, THE 3[RD] DAY OF APRIL 2025 / 13TH CHAITHRA, 1947** **MFA (ECC) NO.1 OF 2018** **ARISING OUT OF THE ORDER DATED 04.08.2016 IN ECC NO.219 OF 2014 OF THE EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL AND EMPLOYEES INSURANCE COURT), KOLLAM** ## **APPELLANT/APPLICANT:** **BASHEER KUTTY S/O.MUHAMMED KUNJU, THOTTAVADI HOUSE, PEROOR, KOLLAM-5** **BY ADV SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENTS/OPPOSITE PARTIES:** **1 S.SREEKUMAR @ MOHANAN SREELAKSHMI, KAVANADU, KAVANADU PO, KOLLAM, PIN.691003.** - **2 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD, LIC BUILDING,KOLLAM, PIN-691001.** **BY ADV.DINESH MATHEW J.MURICKAN, R2** - **THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON** - **03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA(ECC) NO.1/2018** **2** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 ## **JUDGMENT** _Dated this the 03[rd] day of April, 2025_ This appeal is filed challenging the order in E.C.C No.219 of 2014 dated 04.08.2016 on the files of the Employees Compensation Commissioner (Industrial Tribunal and Employees Insurance Court), Kollam. The appellant was the applicant in the proceedings before the Employees Compensation Commissioner (ECC). Respondents were the opposite parties in the said proceedings. Parties are hereinafter referred to as per their status before the ECC. 2. Applicant while working as driver of a lorry owned by the 1st opposite party met with an accident on 14.07.2000. He sustained injuries to his patella (knee cap). He had to undergo a patellectomy. He was aged 47 years and was earning a salary of Rs.5,000/- per month. The injury detrimentally affected his prospects of earning a livelihood by driving. He moved the ECC and claimed a compensation of Rs.2,00,000/-. The owner was arrayed as the 1[st] opposite party and the insurer was the 2[nd] opposite party in the said **MFA(ECC) NO.1/2018** **3** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 proceedings. 3. The 1[st] opposite party did not appear before the ECC and he was set ex parte. The 2[nd] opposite party entered appearance and contested the matter. The existence of a policy cover for the relevant vehicle was admitted. It was contended that no notice of the accident was given to the 2[nd] opposite party either by the injured or by the insured. It was alleged that the applicant was not holding a valid driving licence at the time of the alleged incident. The age and income of the applicant mentioned in the application were denied. The amount claimed by the applicant was termed highly excessive and exorbitant and it was contended that the applicant is not entitled to interest for compensation. Collusion between the 1[st] opposite party and the applicant was also alleged. 4. The ECC framed 5 issues and the parties proceeded to adduce evidence. Exts.A1 to A7 were marked and AW1 and AW2 were examined from the side of the applicant. No evidence was adduced by the 2[nd] opposite party. Ext.X1 disability certificate was marked. After hearing the parties and appreciating the evidence, the ECC rendered the impugned order holding that the applicant is **MFA(ECC) NO.1/2018** **4** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 entitled to get Rs.9,784/- as compensation towards injuries sustained by him in the accident and that he is also entitled to an interest at 12% per annum for the amount awarded from the date of the accident till the date of realisation of the amount. An amount of Rs.400/- was also awarded towards cost. The applicant has filed this appeal challenging the quantum of damages awarded by the ECC. 5. The substantial questions that arise for consideration are as follows: - (1)whether the Commissioner can ignore the evidence adduced by the doctor based on the disability certificate assessing 16% disability and reckon a functional/ occupational disability of 5% for awarding compensation. - (2) Is not the functional disability of a driver to be assessed - based on injuries sustained especially when the injury to patella and patellectomy had been carried out. 6. Heard Sri.S.Sreekumar (Kollam) Advocate for the applicant and Sri.Dinesh Mathew J.Muricken Advocate for the 2[nd] opposite party. **MFA(ECC) NO.1/2018** **5** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 7. The learned counsel for the applicant submitted that the order of the Commissioner is perverse and is not supported by any evidence. The amount awarded by the ECC is liable to be enhanced. The Commissioner without appreciating the evidence adduced by the applicant had reckoned the occupational disability only at 5% and had awarded compensation based on the same. The Commissioner erred in fixing the occupational/ functional disability of the applicant. Ext.X1 certificate has specifically stated that the disability sustained to the specific part is 16%. The same was brushed aside. The said disability of 16% sustained to the specific part has substantial relevance in arriving at the occupational/functional disability. This was overlooked by the Commissioner and an erroneous reliance was placed on the dictum in **Rajkumar v. Ajay Kumar** [2010 KHC 5021] is erroneous. 8. _Per contra, t_ he learned counsel appearing for the 2[nd] opposite party submitted that the order of the Commissioner does not require any interference and the same has been rendered in accordance with law. Ext.X1 disability certificate issued from the medical board specifically stated that the applicant had a loss of **MFA(ECC) NO.1/2018** **6** 2025:KER:29191 **==> picture [58 x 57] intentionally omitted <==** physical function of 5%. AW2 doctor had also deposed substantiating the same. Hence the finding in the impugned order that the applicant has 5% functional/occupational disability due to the accident is legal and valid. The impugned order is sought to be justified by the learned counsel by placing reliance on the dictum laid down in **New India Assurance Co. Ltd. v. Sreedharan** [1995 (1) KLT 275(FB)], wherein it had been held that in a case where the report of the qualified medical practitioner certifying the loss of earning capacity alone is stated and no other evidence is available, the Commissioner cannot ignore the report and fix compensation disregarding it. 9. I have considered the contentions put forth by both sides in detail. I note that the applicant's injury is not a scheduled injury. As per Section 4 (1) (c) (ii) of the Workmen's Compensation Act, 1923 in case of an injury not specified in Schedule I, the amount of compensation is such percentage of compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. It is relevant to note **MFA(ECC) NO.1/2018** **7** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 that in Ext.X1 it is stated that the disability sustained to the specific part is 16%. The permanent disability as per Ext.X1 is 5% considering the body as a whole. It had been specifically noted by the Commissioner that as per Ext.X1, the applicant had partial ankylosis of right knee joint motion limited to the arc from 180degree to 90-degree flexion. However, the Commissioner proceeded to rely on 5% physical function disability overlooking the specific deposition of AW2 doctor that injuries sustained by the applicant may cause difficulty in applying brakes while driving a vehicle. As rightly contended by learned counsel for the applicant, the Commissioner while awarding compensation cannot ignore the medical evidence which assessed 16% disability to the specific part, in the case of the applicant the part most relevant for his avocation as a driver and reckon a functional/ occupational disability of 5% which is stated for the whole body. While assessing the functional/ occupational disability of a person, the injury sustained to the specific part of the body that plays a pivotal role in his avocation cannot be ignored and the whole body disability cannot be substituted, especially when the evidence on record of the doctor **MFA(ECC) NO.1/2018** **8** **==> picture [58 x 57] intentionally omitted <==** 2025:KER:29191 states that the injury to the relevant body part would detrimentally impact the avocation carried on by the individual. The disability taken by the Commissioner at 5% has to be substituted as 16%. The notional income of Rs.2,000/- arrived at by the Commissioner and the relevant factor arrived at 163.07 does not require any alteration. The substantial questions raised above are thus answered in favour of the applicant and against the 2[nd] opposite party. Consequently, the computation of compensation as carried out by the E.C.C. will stand substituted as below: 2000 x 60 x 16x163.07/ 100x100 = Rs.31,309.44. The applicant would also be entitled to receive interest at the rate of 12% on the above-said amount. The 2[nd] opposite party is directed to deposit the said amount less the amount, if any, already deposited before the ECC, Kollam. The applicant will be entitled to realise the amount so deposited in accordance with law. The M.F.A. is disposed of as above. Sd/- **SYAM KUMAR V.M. JUDGE** csl