NATIONAL INSURANCE CO LTD Vs. JOSE

JUDGEMENT

(1.) Appellant is the third opposite party/insurer in a claim filed by the first respondent, claiming compensation for injuries he allegedly suffered. The Commissioner has awarded a sum of ' 23,050 with 12% interest. In arriving at the said figure, the Commissioner has taken the loss of earning capacity of the claimant as 12%, as a construction worker.

(2.) We heard learned counsel for the appellant and the learned counsel for the first respondent.

(3.) Learned counsel for the appellant would raise two issues before us. In the first place, he would contend that this is a case where the applicant had claimed compensation under Section 4(1)(d) of the Workmen's Compensation Act (for short, 'the Act'), that is, he was paid half monthly wages, as contemplated in Section 4(1)(d). Thereafter, the employee produced a certificate from a medical practitioner, certifying that he was fit to rejoin duty. Accordingly, he rejoined his employment and he was continuing with his employment. It is while so, he has filed the present application, claiming compensation under Section 4(1)(c) of the Act. He would submit that this is plainly impermissible. Secondly, learned counsel would contend that this is a case where the loss of earning capacity has been reckoned at 12%, on the basis of the certificate of the Medical Board. But, he would contend that loss of earning capacity has been evaluated at 12% as a construction worker. This again is illegal and impermissible, in view of the decision of the Full Bench of this Court in Vanajakshan v. Joseph, 2003 2 KerLT 462 According to him, the said judgment is an authority for the proposition that loss of earning capacity is to be considered for all work he was capable of doing and the report of the Medical Board and also the order accepting it flies in the face of the decision of the Full Bench.