New India Assurance Co. Ltd. Palakkad v. Ramesh (S/o Ramakrishnan) and T. Praveen

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 MFA.No. 154 of 2010() --------------------WCC.433/2001 of W.C.C.,THRISSUR .................... APPELLANT/2ND OPPOSITE PARTY -------------------------------------- NEW INDIA ASSURANCE CO. LTD. PALAKKAD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/APPLICANT AND OP1. ---------------------------------------- 1. RAMESH, S/O. RAMAKRISHNAN,PARIYEKKAL THEKKETHARA PO, ANCHUMOORTHIMANGALAM,ALATHUR PALAKKAD DISTRICT. 2. T PRAVEEN, S/O.THEYYAN, AISWARYA, VADAKKETHARA POST, ANCHUMOOTHIMANGALAM, PALAKKAD DISTRICT. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 SRI.M.B.PRAJITH FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.F.A.No.154 of 2010 ---------------------------------------Dated this the 21[st ] day of December 2010 ## **J U D G M E N T** ## **K.M.JOSEPH,J** The appellant/insurer is the 2[nd] respondent in the award passed by the Commissioner for Workmen's Compensation. The 1[st] respondent filed an application for compensation of Rs.2,67,252/- for alleged personal injuries. The nature of the injuries have been stated as follows: - (a) Severely compound comminutted fracture both bones left leg lower ¼. - (b) Lacerated wound forehead right with large gaping wound. - (c) Multiple bodily injuries. 2. On the basis of the seven issues raised, the Tribunal has taken the percentage of loss of earning capacity as 45% and calculated the compensation. 3. We have heard the learned counsel for the appellant, the learned counsel for the 1[st] respondent and the learned 2 M.F.A.No.154 of 2010 counsel for the 2[nd] respondent. The learned counsel for the appellant/insurer would contend that this is a case where the appellant had filed an application for sending the applicant to further medical examination. But that has been turned down. He would contend that the appellant has a case that there is violation of policy conditions and according to the appellant, there is no permit. 4. The learned counsel for the claimant would point out the nature of injuries suffered and he would submit that, in fact, it is a case where the medical practitioner has fixed the percentage of loss of earning capacity as 55% and it has not been accepted by the Commissioner and only a lesser percentage has been accepted. Referring the injuries, he would submit that the finding of the Commissioner is entirely justifiable. Under Section 11 of the Workmen's Compensation Act, the learned counsel for the appellant would submit that when an application was filed to send the applicant for medical examination, that should have been allowed. He further relies on the decision of this Court in **Vanajakshan v. Joseph [2003(2) KLT 462 FB]** and contends that what has been considered is loss of earning 3 M.F.A.No.154 of 2010 capacity for all work and not any particular work and therefore the disability certificate given by the medical practitioner is not reliable in the said sense. It is submitted that the medical certificate only reflects the loss of earning capacity as a headload worker. The learned counsel for the appellant reiterates that in the written statement, it was alleged that the respondent has to prove that the use of the vehicle is not in violation of permit and policy conditions. It is further submitted that the appellant has filed an application before the Commissioner for a direction to call upon the claimant to produce the permit and in the same the employer filed a statement saying that the vehicle has been transferred. He would further submit that no finding was entered by the Commissioner on this aspect. The learned counsel for the owner would submit that the evidence would show that questions are put to him and it has been answered by him that he was in possession of licence and also permit and that is why the Commissioner has not entered finding as such on this aspect. 5. We would think that in the nature of the certificate granted and in view of the application submitted by the appellant 4 M.F.A.No.154 of 2010 and also in the manner in which the said application has been rejected, we would be justified in taking the view that the appellant is correct in contending that the award is vulnerable particularly in the context of the judgment of the Full Bench of this Court which we have adverted to. The certificate also does not deal with the question of loss of earning capacity to carry out all jobs he is capable of doing. The learned counsel for the appellant submits that if the matter goes back and the medical board further examines the claimant, probably the appellant may be entitled to get a higher amount. 6. We feel that there is some merit in the contention of the appellant. The claimant was working as a cleaner. No reasons are forthcoming in the order justifying dismissal of the application. That the Commissioner has reduced the percentage of loss of earning capacity, may not be an answer. The learned counsel for the appellant relies on the criteria laid down by the Full Bench of this Court. An assessment of loss of earning capacity in respect of all jobs he was capable of doing, is not done. We also feel that if the appellant has filed an application before the Commissioner seeking for a direction to the owner to 5 M.F.A.No.154 of 2010 produce the permit and a contention is taken therein that it has been transferred and the matter has been closed on the said basis, the issue requires to be considered. Accordingly, the appeal is allowed and the matter is remitted back for the purpose of remitting the matter to the Medical Board for examining the claimant and to get a report and to decide the matter by the Commissioner. Also if the appellant has filed an application for a direction to the owner to produce the permit and there was a reply, as suggested by the appellant, the said issue also must be considered by the Commissioner with full liberty to the parties to adduce evidence also in the said matter. 7. Having regard to the nature of the injuries, we feel that the appeal cannot be allowed in an unconditional manner. Accordingly, we allow the appeal and set aside the order of the Commissioner and remit the matter back as aforesaid. We also permit the 1[st] respondent to withdraw a sum of Rs.75,000/from the amount which has already been deposited subject to the decision to be taken by the Commissioner. We further direct that the proceedings shall be completed by the Commissioner 6 M.F.A.No.154 of 2010 within a period of three months from the date of production of a copy of this judgment before the Commissioner. **(K.M.JOSEPH, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge 7 M.F.A.No.154 of 2010 We extract Section 11 of the Workmen's Compensation Act below: “ **Medical examination** : (1) Where a workman has given notice of an accident he shall, if the employer, before the expiry of three days from the time at which service of the notice has been effected offers to have him examined free of charge by a qualified medical practitioner, submit himself of such examination, and any workmen who is in receipt of a half-monthly payment under this Act shall, if so required, submit himself for such examination from time to time: Provided that a workman shall not be required to submit himself for examination by a medical practitioner otherwise than in accordance with rules made under this Act, or at more frequent intervals than may be prescribed. (2) If a workman, on being required to do so by the employer under sub-section (1) or by the Commissioner at any time, refuses to submit himself for examination by a qualified medical practitioner or in any way obstructs the same, 8 M.F.A.No.154 of 2010 his right to compensation shall be suspended during the continuance of such refusal or obstruction unless, in the case of refusal, he was prevented by any sufficient cause from so submitting himself. (3) If a workman, before the expiry of the period within which he is liable under subsection (1) to be required to submit himself for medical examination, voluntarily leaves without having been so examined the vicinity of the place in which he was employed, his right to compensation shall be suspended until he returns and offers himself for such examination. (4) Where a workman, whose right to compensation has been suspended under subsection (2) or sub-section (3) does without having submitted himself for medical examination as required by either of those subsections, the Commissioner may, if he thinks fit, direct the payment of compensation to the dependents of the deceased workman. (5) Where under sub-section (2) or subsection (3) a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension, and, if the period of 9 M.F.A.No.154 of 2010 suspension commences before the expiry of the waiting period referred to in clause (d) of subsection (1) of section 4, the waiting period shall be increased by the period during which the suspension continues. (6) Where an injured workman has refused to be attended by a qualified medical practitioner whose services have been offered to him by the employer free of charge or having accepted such offer has deliberately disregarded the instructions of such medical practitioner, then [if it is proved that the workman has not thereafter been regularly attended by a qualified medical practitioner or having been so attended has deliberately failed to follow his instructions and that such refusal, disregard or failure was unreasonable] in the circumstances of the case and that the injury has been aggravated thereby, the injury and resulting disablement shall be deemed to be of the same nature and duration as they might reasonably have been expected to be if the workman had been regularly attended by a qualified medical practitioner [whose instructions he had followed], and compensation, if any, shall be payable accordingly. 10 M.F.A.No.154 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010