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M.A.PARAMESWARAN versus RAJAGOPALAN

High Court of Kerala

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M.A.PARAMESWARAN v. RAJAGOPALAN - MFA No. 1272 of 2001(B) [2007] RD-KL 13513 (19 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 1272 of 2001(B)

1. M.A.PARAMESWARAN
... Petitioner

Vs

1. RAJAGOPALAN
... Respondent

For Petitioner :SRI.T.S.RADHAKRISHNA PILLAI

For Respondent :SRI.R.SREEHARI

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :19/07/2007

O R D E R

J.B.KOSHY & K.P.BALACHANDRAN, JJ.

M.F.A.1272 OF 2001 Dated 19th July, 2007

JUDGMENT

Koshy,J.

Respondent in this case was injured when he was employed as a Mahout of an Elephant by name `Chandrasekharan'. As a result of the accident, he sustained very serious injuries. The accident occurred when Chandrasekharan was taken for a festival in a Mosque. With regard to the injuries, Commissioner has detailed the injuries and assessed loss of earning capacity as 100%. In issue No.4 the Commissioner held as follows:

"Ext.A1 is the Discharge summary issued to the applicant from the West Fort Hospital, Thrissur. It shows that Rajagopalan was admitted in this hospital as an inpatient on 15.1.95 and discharged. The reason is stated as elephant gore liver injury. The doctor who issued the disability certificate was examined as a Medical witness AW3 and marked the certificate as Ext.A6. The Doctor has confirmed contents of the certificate and also deposed that the injury is serious in nature and the applicant is not able to do any manual work. According to the Doctor, the loss of earning capacity of the applicant is assessed as 100%. It is also deposed that the applicant is not able to walk freely without the help of others. The Medical witness (AW3) was cross examined by the counsel for opposite party and nothing was brought out to disbelieve the certificate. At the time of cross MFA.1272/2001 2 examination the Doctor made it clear that liver is the important part of the body and it is difficult to re-generate the part of the liver. From the evidence and sympathetic physical appearance of the applicant as well as the medical opinion of a qualified Medical practitioner, I do not feel that the assessment of loss of earning capacity is excessive, when compared to his profession is concerned. Therefore, I decide that the loss of earning capacity of the applicant as 100% as a Mahout is concerned." Loss of earning capacity cannot be seriously disputed because of the medical certificate. Even though even now he has got a crippled life, he is not able to do any gainful employment. Major contention raised by the appellant was that he was not the owner of the elephant `Chandrasekharan'. According to him, his brother was the owner. According to the respondent/claimant, appellant has employed him as a Mahout of the elephant. It is submitted that the appellant has also his own elephants and he has got records for the same, though records were not produced. The second Mahout (AW2) also gave evidence that the claimant as well as he were employed by the appellant. Whoever may be the real owner, the liability to pay compensation is on the employer and evidence of AW2 supports the contention of the claimant that he was employed by the appellant. Further, even though it is admitted by the appellant that he had his own elephants, he has not produced documents showing the names of his elephants and his employees. The finding of the MFA.1272/2001 3 Commissioner that the appellant was the employer is a finding of fact and it is not a substantial question of law so as to attract Section 30 of the Workmen's Compensation Act for maintaining an appeal. The respondent was aged 32 and 203.85 was taken as the factor and compensation was calculated as follows: 1000 x 50 x 203.85 x 100 = 101925/=
100 100 =======
Rs.1,000/= was taken as the monthly wages as the maximum wages that can be taken into account for calculation of compensation was Rs.1,000/= as per the provisions of the Act existing at the time of accident, even though according to the claimant actually he was getting Rs.4,500/= per month. Compensation was calculated strictly as per the provisions of the Act. We see no ground to interfere with the impugned order. The appeal is dismissed. J.B.KOSHY

JUDGE

K.P.BALACHANDRAN

JUDGE

tks


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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