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2003 DIGILAW 267 (KER)

The National Insurance Co. Ltd. v. Zakir Hussain

2003-04-01

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2003
Judgment :- Abdul Gafoor, J. Parties to a workmen’s compensation claim case has approached this Court with these appeals. MFA.1675/98 is by the insurer and MFA.55/99 is by the injured workmen. 2. The substantial question of law raised in MFA.1675/98 filed under Sec.30 of the Workmen’s Compensation Act, 1923 by the insurer/appellant is whether the provisions of Workmen’s Compensation Act, 1923 as amended by Act 30 of 1995, which came into force on 15.9.1995 can be applied to an accident which had occurred admittedly prior to the enforcement of the amending Act. The issue is no longer res intergra in the light of the Full Bench decision of this Court reported in United India Insurance Co. V. Alavi (1998 (1) KLT 951) and the decision of the Appex Court in KSEB V. Valsala 1989 (3) KLT 348). Therefore that question of law has to be answered in favour of the appellant. 3. The further question of law raised by the appellant is can the loss of earning capacity as deposed by the qualified medical practitioner be accepted to compute compensation in respect of an injury not made mention of in Schedule-I to the Act. When the certificate issued by him did contain assessment of the extent of disability alone. It is contended on the strength of the Full Bench decision reported in New India Assurance Co. Ltd. V. Sreedharan (1995 (1) KLT 275) that it cannot be. 4. We are unable to agree with this submission. Sec.4(1)(c)(ii) provides that the loss of earning capacity for the purpose of computation of compensation shall be “as assessed by a qualified medical practitioner”. That assessment need not always be in writing in a medical certificate. It can also be as deposed at the time of evidence by the medical practitioner, who had issued the medical certificate showing the extent of disability suffered on account of the injury sustained. Therefore that question of law is answered against the appellant. MFA.1675/99 has to be therefore allowed to work out the compensation payable based on the pre-amended provisions. In MFA.55/99 the appellant/workman had raised a substantial question of law. When the doctor had as a witness deposed that the extent of loss of earning capacity is 50%, can the commissioner reduce it to 40%. As already mentioned above Sec.4 (1)(c)(ii) provides that the loss of earning capacity shall be as assessed by the qualified medical practitioner. In MFA.55/99 the appellant/workman had raised a substantial question of law. When the doctor had as a witness deposed that the extent of loss of earning capacity is 50%, can the commissioner reduce it to 40%. As already mentioned above Sec.4 (1)(c)(ii) provides that the loss of earning capacity shall be as assessed by the qualified medical practitioner. The qualified medical practitioner AW1 has deposed before the Commissioner that he had issued a disability certificate. Ext.A1, showing the extent of disability at 25% and that on account of such disability, the loss of earning capacity is 50%. That means he assessed the loss of earning capacity at 50%. When he had so assessed going by the statutory provision as mentioned above the commissioner cannot reduce it on any count. Therefore the question of law raised by the appellant is answered in his favour. In such circumstances the compensation payable shall be. 1000x50/100x50/100x221.37=55.342.5. This amount shall carry interest at 6% alone from completion of date of one month from the accident that is 21.6.1995 until the date of payment. The amount so calculated with interest shall be withdrawn from the amount in deposit. Balance if any can be refunded to the person who made the deposit. Both the MFAs are allowed to the above extent. No costs.