IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 MFA.No. 313 of 2003 --------------------------- (APPEAL AGAINST THE ORDER IN WCC NO. 86/95 OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, ERNAKULAM) ................................... APPELLANT: 2ND OPP.PARTY ------------------------------------------- NATIONAL INSURANCE COMPANY LTD. P.B.NO.89, URUMPATH BUILDING, ALWAYE 683 101 REPRESENTED BY ITS DIVISIONAL MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT & R1 ------------------------------------------------- 1. MR.M.M.JOSE, S/O. MATHEW, MULAYIL HOUSE, VADATHUPARA POST. 2. KERALA STATE BAMBOO CORPORATION LTD., ANGAMALY, REPRESENTED BY ITS MANAGING DIRECTOR. R1 BY ADV. SRI.A.X.VARGHESE R2 BY ADVS. SRI.B.S.KRISHNAN (SR.) SRI.K.ANAND (A.201) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008 ALONG WITH MFA NO. 444 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 1536/2003 IN MFA NO. 313/2003. DISMISSED 10/01/2008. SD/- J.B.KOSHY, JUDGE. SD/- K.HEMA, JUDGE. True copy tga J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NOS.313 & 444 OF 2003 () ----------------------------------- Dated this the 10th day of January, 2008 J U D G M E N T KOSHY,J. Appellant in M.F.A.No.444/2003 while cutting bamboo trees suffered serious injuries because of an elephant attack. The Doctor certified that there is 70% loss of earning capacity. The certificate of the doctor reads as follows: “Certified that I have examined Sri.M.M.Jose, Moolayil, Vadathupara, 35 years, that he is an ortopaedically disabled person having post traumatic sequilac left lower limb with ankylosis of left ankle, with chronic oedima of left leg and foot, and scarring of left leg, inability to squat, stiffness of left knee with flexion limitation and the permanent partial physical disability is assessed to be 40% (Forty percent). Also certify that since he is a Bamboo cutter which requires climbing of the hills and forests the loss of earning capacity is assessed to be 70% (Seventy percent). I have perused the medical records from the Cochin Hospital and I am convinced that this disability has M.F.A.NOS.313 & 444 OF 2003 2 resulted from the injuries he had sustained by the assault by an elephant on 5.6.1994.” The appellant was cutting trees for the purpose of 2nd respondent Kerala State Bamboo Corporation Limited, a State Government undertaking, and that undertaking has covered all the employees working under it in the bamboo cutting by two insurance policies. Maximum amount payable under each policy was Rs.25,000/- each. Ext.A1 is the identity card produced by the claimant to show that he was employed for cutting by Bamboo Corporation. Bamboo Corporation contended that they are not liable to pay compensation as he was only casual employee and he was allowed to work for others also. But in the area allotted for Bamboo Corporation, only employees with identity cards can do the work. Appellant was working with Ext.A1 identity card used by Bamboo Corporation. The cutting of trees was for the purpose of the business of the Bamboo Corporation. But Bamboo Corporation was held not liable by the Commissioner for compensation because he was a casual employee. That finding is incorrect. M.F.A.NOS.313 & 444 OF 2003 3 Considering the definition of 'workmen' only casual employees who were not employed for the purpose of business is excluded. Here cutting of trees is part of the business of Bamboo Corporation, and therefore, even if he is a casual employee, he is a workman of the Bamboo Corporation. 2. Commissioner after finding that Bamboo Corporation is not liable but on the basis of the insurance policy, Insurance company was directed to pay Rs.25,000/- each under the two policies. Insurance company filed appeal M.F.A.No.313/2003 contending that if Bamboo Corporation the insured is not liable, they are also not liable to pay the amount and even if he is a workman covered under the policy they are not liable to pay Rs.50,000/-. Rs.25,000/- is the maximum amount payable for the death. Compensation for disability need be paid only depending upon the percentage certified by the Doctor on the basis of the terms of the policy. Workmen compensation is given for the loss of earning capacity. Doctor certified that there is 70% disability. There are two policies issued. Before M.F.A.NOS.313 & 444 OF 2003 4 the Commissioner, Insurance company did not appear and they were declared ex parte. A party which was declared ex parte without setting aside the ex parte cannot file an appeal from the award. Therefore appeal filed by the Insurance company is not maintainable. We also find that Bamboo Corporation is the employer and appellant is a workman under it. 3. Now question is how the amount of compensation has to be calculated. Admittedly at the time of accident, he was employed by the 2nd respondent. Doctor certified that there is 70% loss of earning capacity. Under section 4(1) (II) (ii) compensation has to be calculated on the basis of the medical practitioner's certificate. Medical practitioner certified 70% disability. He was aged 32 years at the time of accident. So the relevant factor is 203.85. Accident happened before the amendment of the Workmen's Compensation Act. Therefore only Rs.1,000/- can be taken as the monthly income. So the compensation payable will be Rs.1,000 x 203.85 x 70/100 M.F.A.NOS.313 & 444 OF 2003 5 x 50/100 = Rs.71,347.50. Claimant is entitled to Rs.71,347.50 with 6% interest from the date of accident till the date of deposit. Commissioner directed the Insurance company to deposit Rs.50,000/- in respect of two policies. That amount should be deposited by the Insurance company. It was already deposited. The balance amount should be deposited by the 2nd respondent Bamboo Corporation with 6% interest from the date of accident till its deposit. In the above circumstances, appeal filed by the claimant is allowed and appeal filed by Insurance company is dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.313 & 444 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 10th January, 2008