The second opposite party/insurer in W.C.C.No.175 of 2005 before the Workmen's Compensation Commissioner, Palakkad, has come up in appeal challenging the quantum of the award passed by the commissioner. 2. In an accident occurred, out of and in the course of employment, of the second respondent herein, the applicant suffered (i) compound fracture fibula of left leg (ii) lacerated wound 8 x 2 cm. over leg (iii) lacerated injury thigh and (iv) 3 abrasions. The applicant was referred to the Medical Board. The Medical Board, on examination, found his partial and permanent disability as 3%. The commissioner has fixed the loss of earning capacity of the applicant as 8%, thereby granting an amount of `41,646/- as compensation, with interest at the rate of 12% per annum, from the date of accident till the date of realisation.
3. Heard the learned counsel, Shri.E.M. Joseph for the appellant, the learned counsel, Shri.K.M.M.Abdurahiman for the first respondent and the learned counsel, Shri E.Narayanan for the second respondent.
4. The learned counsel for the appellant has pointed out that the commissioner has grossly erred in fixing the loss of earning capacity at 8%, when the Medical Board has fixed the partial and permanent disability at 3%. The learned counsel for the appellant relies on the decision in New India Assurance Co. Ltd., v. Sreedharan [1995(1) KLT 275 (F.B.)], wherein it was held that the commissioner cannot ignore the report of a qualified medical practitioner, which certifies the loss of earning capacity and fix the compensation disregarding it.
5. Per contra, the learned counsel for the first respondent has strenuously contended that on a physical examination of the appellant, the commissioner had arrived at the conclusion that the loss of earning capacity is 8%.
6. It seems that the commissioner has not made any observation as to how he could deviate from the percentage of total disablement arrived at, by the Medical Board. As per Section 4(1) (c)(ii) of the Workmen's Compensation Act, in the case of an injury not specified in the Schedule, such percentage of compensation payable in the case of permanent total disablement proportionate to the loss of earning capacity (as assessed by a qualified Medical Practitioner) permanently caused by the injury. Therefore, it is evident that the findings with regard to the the loss of earning capacity shall be in proportion to the permanent disablement as assessed by a qualified medical practitioner. Here in this case, the Medical Board has arrived at a finding as to the permanent partial disability as 3%. Without assigning any reason, the commissioner has chosen to consider the loss of earning capacity as 8%. It cannot be said that the same is proportionate to the partial and permanent disability as found by the Medical Board. At the same time, the certificate of the Medical Board reveals that there was mild tenderness over the fracture site, as well as restriction of movement to left knee and ankle.
7. The learned counsel for the appellant has pointed out that as the Medical Board has fixed permanent disability at 3%, the loss of earning capacity should be 3% or less than that. The said argument does not seem to be sound. The loss of earning capacity in such case should be proportionate to the permanent disablement. At any stretch of imagination, it cannot be considered as 8%. On hearing either sides, this court is of the view that the loss of earning capacity in proportion to the permanent disablement of the first respondent herein, can be fixed as 5%. The learned counsel for the first respondent has pointed out that the commissioner has considered the monthly income of the first respondent as `4,000/- only, even though he was earning `6,000/-. In the absence of any documentary evidence, the commissioner cannot be found fault with in considering the monthly income of the first appellant as `4,000/-. Matters being so, the amount of compensation which the first respondent is entitled to is `26,029.20, which can be rounded off as `26,030/-.
8. Regarding the interest, even though the learned counsel for the appellant has argued that the commissioner has erred in granting the interest from the date of accident, the position is now well settled and the same is not liable to be interfered with. The first respondent is entitled to get interest at the rate of 12% per annum on the amount from the date of accident till the date of payment.
In the result, this appeal is allowed in part and the impugned order is modified as follows:-
The appellant shall pay an amount of `26,030/- with interest at the rate of 12% per annum from the date of accident till the date of payment to the first respondent herein.
As the entire award amount has been deposited by the appellant, the balance amount shall be repaid to the appellant.
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B.KEMAL PASHA, JUDGE dl // TRUE COPY // PA to Judge