IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 116 of 2010()
1. PRATHAPAN, S/O.LATE GOPALAN,
... Petitioner
Vs
1. T.V.PAILY, S/O.VARKEY,
... Respondent
2. DISTRICT FOREST OFFICER,
For Petitioner :SRI.RUSSEL JOY
For Respondent :SRI.A.C.DEVASIA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/12/2010
O R D E R
M.N. KRISHNAN, J.
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M.F.A. NO. 116 OF 2010
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Dated this the 17th day of October, 2010.
J U D G M E N T
This is an appeal preferred against the order of the
Workmen’s Compensation Commissioner, Ernakulam in
W.C.C. 66/01. The applicant sustained injuries in an
accident when a log fell on his leg resulting in injuries
and he claims to be permanently disabled. According to
him the first opposite party has employed him and 2nd
opposite party has given the work to the first opposite
party. The first opposite party would contend that he is
only a convener and he has nothing to do with the
employment and therefore he cannot be made liable.
The 2nd opposite party would contend that they were not
aware of the incident at all and according to them they
have never engaged the applicant or the first opposite
M.F.A. 116 OF 2010
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party to do any kind of work. The Compensation
Commissioner on an analysis of the materials found that
the claimant had sustained injuries in the course of
employment and further discussed the matter and
finally dismissed the application on the ground that no
document had been produced to prove the loss of
earning capacity. It is against that decision the claimant
has come up in appeal.
2. So far as it relates to the liability is concerned
a perusal of the documents produced by the Department
would show that there was some malpractices in the
Department and therefore it decided to have a system
whereby the convener can be selected among from the
workers and they were given the responsibility to make
the people do the work collecting the amount from the
Government and disbursing it to the concerned
workmen. Actually these conveners were working as
representatives of the Department. Even if it is a
M.F.A. 116 OF 2010
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principal employer and immediate employer
relationship, since both are in the party array ultimately
liability is on the Government being the principal
employer and therefore in case of an award being
passed it is desirable that the Department is directed to
pay the amount.
3. Now the next question is regarding the
entitlement. Under the provisions of the Workmen’s
Compensation Act unless there is materials to prove the
loss of earning capacity and the percentage of the loss
of earning capacity the Court cannot fix the quantum of
compensation. Except a medical certificate we do not
find relevant input for making a decision regarding the
loss of earning capacity but while assessing the loss of
earning capacity it has to be borne in mind that the
principle to be applied is on the basis of the dictum laid
down by a Full Bench of this Court reported in
Vanajakshan v. Joseph (2003 (2) KLT 462(FB)
M.F.A. 116 OF 2010
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where the Full Bench held that it is not the nature of
work which he was doing that alone is to be taken into
consideration but the entire work which one was capable
of doing has to be taken into consideration and then
only the loss of earning capacity has to be ascertained.
Now this can be done by referring the person to a
Medical Board and to assess the loss of earning capacity
in the light of the dictum laid down above. Thereafter
the parties can be permitted to adduce evidence and the
matter can be disposed of in accordance with law.
4. In the result the order under challenge is set
aside and the matter is remitted back to the Workmen’s
Compensation Commissioner with a direction to direct
the applicant to appear before the Medical Board and to
assess his loss of earning capacity as contemplated
under the decision reported in 2003 (2) KLT 462 and
thereafter permit the parties to adduce evidence in
support of their respective contentions and then the
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matter be disposed of in accordance with law. The
Commissioner is directed to issue notice to the parties
fixing the date of appearance.
The M.F.A. is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-