SEBASTIAN MATHEW Vs. JOSEPH SEBASTIAN

JUDGEMENT

(1.) The workman has approached this Court assailing the order of the Workmen's Compensation Commissioner raising two substantial questions of law. They are (i) On the basis of the evidence that the workman is totally disabled, can the Workmen's Compensation Commissioner assess the loss of earning capacity in excess of the disability certified in the disability certificate. (ii) Is not the Commissioner liable to award 12 per cent interest in terms of subs.(3) of S.4A of the Workmen's Compensation Act, 1923 as the Award has been passed subsequent to the amendment to that section.

(2.) Admittedly the injury suffered by the appellant was not an injury mentioned in Schedule 1 to the Act. So, going by the provisions contained in S.4(1)(c)(ii) of the Act the loss of earning capacity shall be as assessed by the qualified medical practitioner. Admittedly Ext. A - 3 is the disability certificate. The qualified medical practitioner assessed only a disability of 50 per cent. He did not separately assess the loss of earning capacity as a result of such disablement. It is probable that loss of earning capacity may be either equal to or in certain cases in excess of the extent of the disability certified. It is in spite of that the qualified medical practitioner apart from assessing the extent of disability did not assess the extent of less of earning capacity. Therefore the appellant was sent for an examination by a medical board. Admittedly, medical board assessed and found disability to the extent of 30 per cent. Same situation arose there also, as the medical board did not separately assess the loss of earning capacity, obviously because the extent of loss of earning capacity is equal to the extent of disability certified by them. So going by the provisions contained in S.4(1)(c)(ii) the extent certified by the medical board alone can be, whatever be the evidence to the contra accepted by the Commissioner for workmen's compensation. That is what is done here. So the first question of law is answered against the appellant. A Full Bench of this court has held in New India Assurance Co. Ltd. v. Sreedharan ( 1995 (1) KLT 275 ) that when the provision refers to the loss of earning capacity as assessed by a qualified medical practitioner shall be taken by the Commissioner. So the certificate of the medical beard shall be the basis.

(3.) The second question of law is on interest. Accident occurred on 4th November 1993, before the enforcement of Act 30 of 1995 amending the Workmen's Compensation Act, 1923 including the provision relating to the rate of interest. Rate of interest was enhanced from 6 per cent to 12 per cent or such other higher market rate of interest as the Commissioner may fix, to be effective from 15th September 1995. It is contended on the strength of a Division Bench decision of this court reported in Oriental Insurance Co. v. Muhammed ( 2002 (1) KLT 131 ) that the rate of interest to be calculated shall be the rate available on the date of payment of compensation.