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THE ORIENTAL INSURANCE CO. LTD., THRISSUR v. LEELA - MFA No. 163 of 2005  RD-KL 894 (26 September 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMMFA No. 163 of 2005()
1. THE ORIENTAL INSURANCE CO. LTD.,THRISSUR
1. LEELA, S/O. KUMARAN,
2. JAISON FRANCIS,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.P.V.BABY
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
O R D E R
THOTTATHIL B. RADHAKRISHNAN, JM.F.A. NO. 163 OF 2005
Dated this the 26th day of September, 2006
This is an appeal by the second opposite party, the insurer in a W.C Case.
2. The first contention of the appellant is that the applicant was only a pedestrian and the story that she was injured while in the course of employment have not been appropirately considered by the Commissioner. Having regard to the nature of the finding rendered by the Commissioner under issues 1 and 2 on the basis of the testimony of AW2, Ext. A1, F.I.R., Ext. A2 Scene Mahassar and Ext. A4 charge sheet and also Ext. A7 Accident Register cum wound certificate, I do not find any substantial question of law arising for decision on the finding of the Commissioner, that applicant was injured during the course of employment.
3. The second contention raised by the appellant is that the Commissioner erred in the matter of determining the percentage of disability by acting on the certificate of doctor by merely slashing the percentage of disability and loss of earning capacity determined by the doctor, instead of referring the claimant to the medical board. In support of this contentions the learned counsel for the M.F.A. NO. 163 OF 2005 2 appellant relied on the decision of Full Bench of this Court in New India Assurance Co. Ltd., vs. Sreedharan (1995 (1) KLT 275). Having regard to the ratio of the said decision, the Commissioner, having come to the conclusion that the percentage of loss of earning capacity determined by the doctor in the disability certificate cannot be acted upon, it was appropriate that the claim was referred for determination of loss of earning capacity by the Medical Board. In the result, a) The findings that the claimant was injured during the course of her employment and that she is covered by the policy are confirmed. b) The finality of the award in so far as it relates to the determination of loss of earning capacity in excess of 50% of what has been fixed is set aside and the case is remitted for re-consideration of the Tribunal. It is further directed that the re-determined compensation, following the remit, shall not be less than 50 per cent of what has been fixed now. c) The claimant will be entitled to withdraw 50 per cent of the amount deposited by the insurer. d) The commissioner will expedite final disposal of the matter, following this order of remit. M.F.A. NO. 163 OF 2005 3 e) No costs. THOTTATHIL B. RADHAKRISHNAN,
JUDGE.RV M.F.A. NO. 163 OF 2005 4
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