NATIONAL INSURANCE COMPANY LTD Vs. SURESH BABU

JUDGEMENT

(1.) In this appeal, the appellant Insurance Company is assailing an order of the Workmen's Compensation Commissioner, Thrissur in W.C.C. No. 202/98. The workman was a driver in a car owned by the 2nd respondent herein. The car lost with an accident while colliding with a van in Pullinchodu at Aluva. The workman sustained injuries. He was admitted to Medical Trust Hospital, Ernakulam. He had been in treatment. There was severe injuries to his left leg and this resulted in, according to him, disablement as certified by Ext. A3 which was duly proved by AW 2. AW 2 was an Assistant Professor in the Medical College Hospital, Thrissur at the relevant time. What was certified was that there was 15% of permanent partial disablement and 50% of the loss of earning capacity as a driver which is the profession of the workman. Accordingly, an amount of Rs. 1,30,146/- was awarded with 12% interest from the date of application namely 17.8.98. This order is under challenge in this appeal mainly raising a question of law as to whether a medical practitioner was bound to follow while fixing the percentage of loss, the principle contained in Explanation II to S.4(1)(c) of the Workmen's Compensation Act, 1923.

(2.) Admittedly, the injury sustained by the workman was not a scheduled injury. Therefore, the amount of compensation shall be calculated on the basis of the provision contained in S.4(1)(c)(ii) of the Act, which provides that in the case of permanent partial disablement resulting from an injury which is not specified in Schedule I, such percentage of the 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. Explanation II provides that in assessing the loss of earning capacity for the purpose of sub clause (ii) as mentioned above, the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in Schedule I. The workman sustained injuries to his left leg and it is certified in Ext. A3 that on examination of the workman that he had malunited fracture neck of left fibula and stiffness and pain of the left knee joint. These are the material defects noticed which amounted to disablement. If there was amputation of the portion below left knee, it should have been as per item No. 21 in Part II of Schedule I to the Act and compensation payable will be based on 50% loss of earning capacity. In this case, there was no amputation. On the other hand, the left leg can work to some extent except to the malunited fracture neck of left fibula and stiffness and pain of the left knee joint. Naturally, it cannot come upto 50% as the case of amputation below knee. Explanation II to S.4(1)(c) provides as follows:

(3.) In such circumstances, we find that there is no reason to remit the matter to the Commissioner again for the purpose of assessing the loss of earning capacity. Admittedly, the injury sustained is to the left leg of a driver and the disability noticed are malunited fracture neck of left fibula, and stiffness and pain of the left knee joint. This will certainly result in consequential loss of earning capacity in the case of a driver. It cannot anyhow extent to 50% as certified in Ext. A3. Taking into account the job of a workman as a driver, left leg has an important role in discharging the duties as a driver. Malunited fracture neck of left fibula and stiffness and pain of the left knee joint, shall disable him to continue the job. Therefore, it shall be taken as 40% of the loss of earning capacity. In that situation, we are not inclined to remit the matter to the Commissioner of the Workmen's Compensation to trouble the parties again for a trial. Accordingly, we answer the question of law raised to the above extent and allow the appeal in part modifying the amount of compensation as