Kerala High Court
The Oriental Insurance Co. Ltd., ... vs Jimmy, S/O. Joseph And Manoj, S/O. ... on 2 April, 2003
Equivalent citations: II(2003)ACC289, 2004ACJ900
Bench: K.A. Abdul Gafoor, K. Thankappan
JUDGMENT Abdul Gafoor, J.
1. This appeal is filed by the insurer against the order of the Commissioner for Workmen's Compensation, Thrissur in W.C.C. No. 333 of 2000.
2. A person employed as a driver sustained injuries during the course of his employment. He filed a claim petition under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act") which was allowed. The contention of the insurer in this appeal under Section 30 of the Act is that the workman did not have a valid driving licence at the time of the accident and that the Commissioner had taken the loss of earning capacity as 70% inspite of the fact that the disability certified by the doctor was only 25%.
3. The employer and employee relationship cannot be disputed by the appellant. The accident also is not disputed. In such circumstances, whether the workman did have a proper licence or not, whether he is a Wireman, a Boiler Operator or Driver as the case may be, is not a matter for the concern of the insurer. When the insurer had undertaken the liability that had fallen upon the insured, necessarily the insurer has to discharge that burden. If there is violation of the policy conditions, the insurer can seek appropriate remedy.
4. The certificate issued by the qualified medical practitioner did not really contain the assessment regarding the loss of earning capacity. But he had deposed before the Tribunal that there was 75% loss of earning capacity. So, even if the certificate did not contain such an assessment, the doctor had expressed that there was that much loss of earning capacity. The injury sustained by the workman is not one specified in Schedule I to the Act. The Commissioner has to take into account the loss of earning capacity that was assessed by the qualified medical practitioner. That need not be in writing. Such assessment can be given in evidence as well. There is, therefore, proper assessment of the loss of earning capacity. Even then the Commissioner has taken only 70% as the loss of earning capacity. So, the appellant - insurer cannot be aggrieved by the award.
The appeal fails and it is dismissed.