IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 MFA.No. 188 of 2008() -------------------------------- WCC.265/1999 of WORKMEN'S COMPENSATION COMMISSIONER, THRISSUR .................... APPELLANT(S): (OPPOSITE PARTY) ---------------------- THE MANAGING DIRECTOR, DIVINE MEDICAL CENTRE(P), LIMITED, WADAKKANCHERY, KUMARANELLUR P.O., THRISSUR 680 590 BY ADV. MR.P.RAMAKRISHNAN RESPONDENT(S): (APPLICANT) ----------------------- THANKAPPAN @ AYYAPAN, S/O. CHATHA, KAYALAPURAKKAL HOUSE, KUMARANALLOOR VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR. R1 BY ADV.MR.SANTHEEP ANKARATH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.F.A.NO.188 OF 2008 ............................................. Dated this the 24th day of September, 2009 J U D G M E N T This is an appeal preferred against the award of the Workmen's Compensation Commissioner, Trichur in WCC.No.265/1999. The applicant therein, according to him, was employed by the opposite party for the purpose of digging a well in the Divine Medical Centre, Wadakkanchery. According to him, he sustained multiple fractures and therefore claimed compensation under the Workmen's Compensation Act. The opposite party had put forward a contention that the digging of the well was given on contract to one Padmanabhan S/o. Karappankkutti. Therefore, they denied the employee-employer relationship. The Workmen's Compensation Commissioner after consideration of the entire materials found that the applicant is an employee under the opposite party and fixed the loss of earning capacity at 40% basing on the permanent disability certificate issued by a doctor and took the income at Rs.2,000/= and awarded a compensation amount of : 2 : M.F.A.NO.188 OF 2008 Rs.87,058/= with interest from the date of the accident. It is against that decision, the opposite party has come up in appeal. 2. Heard both sides. The learned counsel for the appellant would submit before me that the question whether the work was entrusted to a contractor is a material issue to be decided in the case. It is true that even if a work is entrusted to a contractor, the opposite party will not escape from being the principal employer under the provisions of the Act. But in order to safeguard the interest in such cases, the legislature in its wisdom has stated that even though there is an immediate employer and the principal employer and if the amount is ordered to be paid by the principal employer and if the entrustment of work to an immediate employer is proved, then certainly there can be a provision enabling the principal employer to realise the amount from the immediate employer after satisfaction of the award amount in favour of the claimant. So, the real dispute in such cases will be an inter se dispute between the principal employer and the alleged immediate employer. AS there is a specific case of the opposite party regarding the entrustment of the work to a contractor and as one has to : 3 : M.F.A.NO.188 OF 2008 state that it was a hospital, one should not simply reject it on the ground that it is not acceptable. Therefore in the interest of justice, it is really necessary to implead Sri. Padmanabhan as an opposite party in this case for resolving the dispute between the opposite parties. 3. Therefore, I direct the applicant herein to implead the alleged contractor and further a direction is given to the opposite party to furnish the address of the contractor so as to implead him as a party to the proceedings. 4. The next question is regarding the acceptability of the disability. The injury sustained by the applicant is a pattela fracture. Permanent disability is assessed by the medical board at 40%. But, the medical board has not found out the loss of earning capacity of the applicant. A Full Bench of this Court in the decision reported in Vanajakshan v. Joseph (2003(2) KLT 462) had laid down the principles to be followed in such type of cases. This Court held that while determining the loss of earing capacity, the authority has to keep in view “for all work” and not for the work for which he was actually employed. It has to be stated that in this particular case materials are not available to establish the loss of earning capacity. Since the medical board has : 4 : M.F.A.NO.188 OF 2008 not assessed the loss of earning capacity as such and further that the medical board has not considered the question of what all work the applicant was capable of performing, the fixation of loss of earing capacity without any document by the Workmen's Compensation Commissioner cannot be sustained. Therefore, the methodology to be adopted is to refer the claimant again to a medical board with a specific direction to assess the loss of earning capacity as contemplated in the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462) and thereafter permit the parties to adduce evidence in support of their respective contentions. So far as the interest is concerned, since the matter is going back, let it be decided on the basis of the latest decision available on the point at that point of time. 5. Therefore the appeal is allowed and the award passed by the Workmen's Compensation Commissioner is set aside and the matter is remitted back to him with a direction to permit the claimant to implead the contractor alleged in the written statement of the opposite party and also to refer the claimant to a medical board to assess the loss of earning capacity as contemplated in the decision reported above : 5 : M.F.A.NO.188 OF 2008 and thereafter permit all concerned to produce both documentary as well as oral evidence in support of their respective contentions. 6. Since 50% of the amount is already deposited, the applicant is at liberty to withdraw 50% of the principal amount and let the remaining balance amount be kept in the court deposit till a final decision is taken in the matter. Being a case relating to the Workmen's Compensation Act, the Workmen's Compensation Commissioner shall endeavor to dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of first appearance of the parties before the Workmen's Compensation Commissioner. The Workmen's Compensation Commissioner is directed to fix the date of appearance and inform the parties about the same. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 6 : M.F.A.NO.188 OF 2008