IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE IST FEBRUARY 2011 / 12TH MAGHA 1932 MFA.No. 304 of 2009() ------------------------------- WCC.12/2002 of COMMISSIONER FOR WORKMENS COMPENSATION, THIRUVANANTHAPURAM. .................... APPELLANT(S): 1ST OPPOSITE PARTY -------------------------------------------------------- MOHAN, 'MARUTHI', TC 11/1940, NALANCHIRA P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA RESPONDENT(S): APPLICANT & WORKMEN COMPENSATION COMMISSIONER: ----------------------------------------------------------------------------------------------------------------- 1. PRAKASH @ VIJAYAPRAKASH, S/O. GANGADHARAN PILLAI, BINDHU BHAVAN, MANIKANTESWARAM P.O., THIRUVANANTHAPURAM. 2. THE COMMISSIONER FOR WORKMEN COMPENSATION, THIRUVANANTHAPURAM. R1 BY ADV. SRI.BIJU BALAKRISHNAN R2 BY GOVERNMENT PLEADER SRI.T.K.SAJEEV THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON IA. NO.3917/09 IN MFA. NO.304/2009 DISMISSED 01/02/2011 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 304 OF 2009 = = = = = = = = = = = = = = = Dated this the 1st day of February, 2011. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thiruvananthpauram in W.C.C. 12/02. It is the case of the applicant therein that while he was working as a painter under the opposite parties he had fallen down from a ladder resulting in sustainment of serious injuries and therefore he moved an application for getting compensation under the Workmen's Compensation Act. On the contra the opposite parties therein would contend that the applicant was never employed as a painter and therefore he was not an employee under the opposite parties and so the question whether the injuries had arisen out of the M.F.A.. 304 OF 2009 -:2:- employment does not arise and therefore the petition is liable to be dismissed. They have also disputed about the nature of injuries etc. 2. On the evidence the Workmen's Compensation Commissioner found in favour of the applicant, fixed the disability at 15%, wages at Rs.4,000/- and awarded the compensation. It is against that decision the first opposite party has come up in appeal. 3. Heard the learned counsel for the appellant as well as the counsel for the applicant before the lower Court namely the first respondent. The definite case of the applicant is that while he was working as a painter under the opposite party he had fallen from the ladder resulting in sustainment of injuries. The medical records are produced to show that he had a fall from ladder and had sustained a fracture on the patella, a fracture M.F.A.. 304 OF 2009 -:3:- on the cheek etc. Now the fundamental question to be resolved before proceeding to determine the compensation is regarding the employer- employee relationship. We are having evidence of the applicant as well as the first opposite party and one of his witnesses. The applicant had examined another coworker as AW2 but unfortunately he was not available for cross- examination so when a person is not cross- examined the examination in chief cannot be accepted as a piece of evidence unless his evidence is admitted by the other side. Here, we are having oath against oath by the interested parties and therefore it is always reliable to depend upon some independent evidence which may permit the Court to arrive at a proper decision. Since AW2 has been examined in chief and when he is able to withstand cross examination properly then it may be a case where M.F.A.. 304 OF 2009 -:4:- the Court has to analyze evidence of both the sides to arrive at a decision. Therefore I feel an opportunity has to be given to both the sides to adduce further evidence in the matter regarding the injury. 4. Now turning to the quantum as well the injuries sustained are a fracture of the patella, fracture on the cheek and loss of some teeth. In the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB) a Full Bench of this Court were considering the methodology to be adopted for fixing the loss of earning capacity. The Court held that the loss of earning capacity has to be calculated not on the basis of a particular work which one was doing but on the basis of the work which one was capable of doing at the time of the accident. Then the Court further held thereafter an opportunity has to be given to the parties to M.F.A.. 304 OF 2009 -:5:- adduce evidence in support of their respective contentions. Unfortunately, in the case before me, first of all no sustainment of loss of earning capacity is assessed and what is assessed is only permanent disability. It is true that there is permanent disability and loss of earning capacity but it is a matter that has to be probed into and proved. Therefore on that ground also the matter requires reconsideration. 5. In the result the appeal is allowed and the order under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with a direction to permit both the parties to adduce further evidence in support of their respective contentions as well as to recall AW2 and make him available for cross-examination and further to direct the parties or referring the applicant to appear before the Medical Board so as to M.F.A.. 304 OF 2009 -:6:- assess the loss of earning capacity as envisaged under the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB). The Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance. It is also made clear if any amount is in deposit let it remain in deposit and disbursement be made after final disposal of the matter. Considering the nature of the case let there be a very expeditious disposal within three months from the date of first appearance of the parties. The M.F.A. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-