IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 MFA.No. 116 of 2010() -------------------------------- WCC.66/2001 of COMMISSIONER FOR WORKMEN'S COMPENSATION , (DEPUTY LABOUR COMMISSIONER), ERNAKULAM .................... APPELLANT(S): CLAIMANT -------------------------------------- PRATHAPAN, S/O.LATE GOPALAN, AGED 49 YEARS, ELAVANLAI HOUSE, URULANTHANNY P.O., KOTHAMANGALAM. BY ADV. SRI.RUSSEL JOY SRI.JOHN JOSEPH(ROY) RESPONDENT(S): RESPONDENT ----------------------------------------------- 1. T.V.PAILY, S/O.VARKEY, THALIYACHIRAYIL HOUSE, POOYAMKUTTY P.O., PIN-686 691. 2. DISTRICT FOREST OFFICER, ERNAKULAM. ADV. SRI.A.C.DEVASIA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 116 OF 2010 = = = = = = = = = = = = = = = Dated this the 17th day of December, 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 -:2:- 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 -:3:- 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 -:4:- 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 M.F.A. 116 OF 2010 -:5:- 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. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.