Alibaba Proprietor, Wood Tech Mudaliyarbham v. Commissioner for Workmen's Compensation & M.G. Antoony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932** **MFA.No. 253 of 2009()** **--------------------------------** **WCC.35/2002 of COMMISSIONER FOR WORKMEN'S COMPENSATION , (DEPUTY LABOUR COMMISSIONER),ERNAKULAM.** **....................** ## **APPELLANT(S):OPPOSITE PARTY** **--------------------------------------------------** **ALIBABA,PROPRIETOR, WOOD TECH MUDALIYARBHAGAM,COCHIN-5.** **BY ADV. SRI.T.I.DANIEL SMT.K.DEEPA (PAYYANUR)** ## **RESPONDENT(S): APPLICANT.** **-------------------------------------------** **1. THE COMMISSIONER, WORKMEN COMPENSATION,COLLECTORATE BUILDING, KAKKANAD.** **2. M.G.ANTOONY, S/O.M.A.GOERGE, MAKKIRIKKATTU HOUSE, KUMBALANGI,ERNAKULAM.** **R2 by ADV. SRI.JOSE TOM C. KANDATHIL** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **M.N. KRISHNAN, J.** ........................................... M.F.A..NO.253 OF 2009 ............................................. Dated this the 3[rd] day of September, 2010. ## **J U D G M E N T** This is an appeal preferred by the opposite party in W.C.C.No.35/2002 against the order passed by the Workmen's Compensation Commissioner. The brief facts necessary for the disposal of the appeal are stated as follows: 2. It is the case of the applicant that he was a carpenter working under the opposite party and on the relevant day while he was doing the work, his hand got entangled in the machine, as a result of which, the little finger has to be amputated and phalanx of the ring finger also had to be removed. Therefore he has claimed compensation as an employee under the opposite party/appellant. 3. On the other hand, the appellant/opposite party would contend that there was no employer employee relationship between the two and the incident took place when he had come to the unit of the appellant with a prayer : 2 : ## M.F.A..NO.253 OF 2009 to use a machine for the purpose of cutting and while he was doing his own work, on account of his negligence, there was injury sustained by him and therefore, he cannot be asked to pay compensation. 4. In the first round of litigation, the opposite party did not seriously participate. Thereafter he moved a writ petition before this Court and this Court rightly dismissed the writ petition on the ground that there is a statutory remedy available. Thereafter an appeal was preferred and this Court granted an opportunity to the party to put forward his case. The evidence available before the court is that of the applicant, opposite party, one Baiju and James. According to the applicant, while he was working under the opposite party on the unfortunate day, the incident took place and he was taken by the opposite party to the hospital and thereafter there had been a dispute between the parties. According to the claimant, he had started working with him from 1998 onwards. 5. AW2 is one Baiju, who according to the claimant, was a worker along with him and he had also deposed before the court that the incident took place while the claimant : 3 : M.F.A..NO.253 OF 2009 was working as an employee under the opposite party. Of course, the next witness - James is the brother-in-law of the applicant and he had also deposed before the court that on the relevant day the incident took place. As against this, the oral evidence available is that of the opposite party. He would depose that the applicant is a mobile carpenter and since the opposite party had the machine for cutting and as the claimant was doing his own private work, he had approached him with promise to pay Rs.120/= per hour as rent to use the machine and in that process he sustained the injury. The evidence of the opposite party appears to be quite artificial in nature. The incident has taken place in his premises. He was running a small scale unit. Admittedly, the small scale unit was dealing with furniture. It was during the process of manufacture of furniture, the incident had taken place. According to the opposite party, only his son and wife were helping him. Certainly the wife cannot work as a carpenter and evidence is to the effect that they were only helping in the process of polishing and varnishing the furniture. That appears to be more probable and acceptable. According to the opposite party, while he was : 4 : M.F.A..NO.253 OF 2009 coming back from some other place he saw the applicant standing on the gate with closed hand with the injuries and thereafter he had taken him. Until and unless there was some personal interest or involvement, he would not have taken him to the hospital. The place of accident, ownership of the place of accident, nature of work, avocation of the applicant and nature of work done in the small scale unit of the opposite party are all which will lead to the conclusion that the applicant was working as a carpenter under the opposite party and it was at that time the incident took place and he had sustained the injuries. It has also to be stated that when an appeal is preferred against the finding of facts, the Workmen's Compensation Act also restricts the entertainment unless there is total mis-appreciation of evidence. It has also to be stated that the Workmen's Compensation Commissioner has analysed the evidence and had the opportunity to see the witnesses and had accepted their version. It is always cautioned by the Apex Court that while disturbing on the finding based on evidence of witness examined before the trial court the appellate court shall be slow and unless there is substantial mis-appreciation, it shall : 5 : M.F.A..NO.253 OF 2009 not be disturbed. But a reading of the entire evidence would only reveal that what is stated by the applicant is true and therefore I do not find any ground to interfere with the said decision. So, I hold that the applicant was an employee under the opposite party. 6. So far as the quantum is concerned, the applicant had sustained injuries which resulted in amputation of the little finger as well as amputation of the phalanx of the ring finger. 12% is not excessive at all for the reason that the schedule prescribes something more. Therefore, the total loss of earning capacity assessed at 12% is also in accordance with law. The amount of wage shown is also reasonable and correct index is applied in awarding the amount. Therefore on quantification of the compensation also there is no mistake. 7. So far as the interest is concerned, in **National Insurance Company Ltd. v. Rekha** (2008 A.C.J 886), this Court had held that an employee is entitled to get 12% interest. In the said decision, the Division Bench had considered the Constitution Bench rulings of the Supreme Court reported in **Pratap Narain Singh Deo v. Shrinivas** : 6 : M.F.A..NO.253 OF 2009 **Sabata** (AIR 1976 SC 222) and in the light of the same had held that when there is a Constitution Bench decision and subsequently Division Bench rulings of the Apex Court, the decision of the Constitution Bench has to prevail. The same has also been followed by another Division Bench of this Court as well by the Himachal Predesh High Court in the decision reported in **New India Assurance Co. v. Budh Ram** (2009 (4) TAC 614). Therefore the award of interest also is strictly in accordance with law. 8. Therefore, from these discussions I find that there is nothing to interfere with the decision rendered by the Workmen's Compensation Commissioner that calls for interference. Whatever amount is due under the award with interest which has been paid has to be taken note of and if there is any balance, it has to be paid and if there is any excess payment, the claimant has to reimburse to the employer namely the appellant. The appeal fails and the same is dismissed. ## **M.N. KRISHNAN, JUDGE.** ## **cl** : 7 : M.F.A..NO.253 OF 2009 : 8 : ## M.F.A..NO.253 OF 2009 ## **M.N. KRISHNAN, J.** ........................................... A.S.NO.883 OF 1996 ............................................. 13[th] day of August, 2010. **J U D G M E N T**