IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MFA.No. 151 of 2002() ------------------------------- WCC.75/1996 of COMMISSIONER FOR WORKMEN'S COMPENSATION, THIRUVANANTHAPURAM .................... APPELLANT: OPPOSITE PARTY ------------------------- SAINULABDEEM PROPRIETOR,RAJADHANI HARD WORKS, MANCHADIMOODU,VETTIYOORKAVU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT: APPLICANT ---------------------- P.JANARDHANAN, S/O. PADMANABHAN, JANATHA HOUSE, KACHANI, KARAKULAM, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.F.A.NO.151 OF 2002 () ----------------------------------- Dated this the 9th day of June, 2008 J U D G M E N T KOSHY,J. Respondent in this case sustained serious injuries during the course of employment. He filed an application claiming compensation of Rs.1,25,000/-. Commissioner awarded Rs.45,927/- with statutory interest fixing loss of earning capacity at 25%. First contention raised was that he was not a workman under the Act and appellant was not the employer. According to the appellant, he was dealing with the business of purchase of property and construction of building, whereas the respondent is a painter by profession and he was paid Rs.100/- per day. According to the appellant, he has no business in painting. But from the evidence adduced, Commissioner found that he was engaged in the painting work by the appellant and while doing the painting work, accident MFA.151/02 2 occurred. Claimant's evidence was supported by the evidence of AW2. Apart from the claimant's evidence, evidence of AW2 also relied on to show that workman was employed and during the course of employment, accident occurred. Commissioner considered the evidence adduced by the appellant also. Appellant as DW1 admitted that building in which painting was done was constructed by him and Rs.70/- was paid daily. From the totality of the circumstances, Commissioner found that he was a workman as defined under the Act and accident occurred during the course of employment under the appellant. The appellant was engaged in the business of purchase of property, construction of building and selling of the same. It is a finding of fact from evidence that workman was employed by the appellant at the time when accident occurred. Under Section 30 of the Workmen's Compensation Act, only if there is a substantial question of law, that an appeal will lie, and here there is no substantial question of law. Respondent was a workman under the appellant and during the course of employment, accident occurred. Secondly, it was contended that the assessment of loss of earning capacity MFA.151/02 3 was not correct. Under Section 4 (1) (ii) of the W.C.C.Act, in case of non schedule injuries, Commissioner has to assess the compensation on the basis of loss of earning capacity assessed by the medical practitioner. Here on the basis of the medical board certificate, Commissioner assessed 25% loss of earning capacity. In these circumstances, we see no ground to interfere in the order of the Commissioner, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO.151 OF 2002 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 9th June, 2008