IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE
MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933
MFA.No. 86 of 2006() -------------------WCC.46/2001 of W.C.C. TVM. ....................
APPELLANT/2ND OPPOSITE PARTY IN WCC NO.46/01
------------------------------------------------
DIVISIONAL MANAGER, DIVISIONAL OFFICE, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM.
BY ADV. SRI.LAL GEORGE
RESPONDENTS/APPLICANT & 1ST OPPOSITE PARTY
---------------------------------------------
1. K.RAJENDRAN, S/O. KUTTAN NADAR, PARAYANTHALA VEEDU, PANTHAPLAVIKKONAM, NELLINADU, VENJARAMOODU, TRIVANDRUM.
2. SAVITHRI, W/O. SURENDRAN, CHANALAVAVILAKOM, CHERUTHALAMPADU, PANGODE, THIRUVANANTHAPURAM.
ADV. SRI.G.UNNIKRISHNON FOR R1
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * ***
M.F.A.No.86 of 2006
**==> picture [178 x 2] intentionally omitted <==**
Dated this the 19[th] day of December 2011
## **J U D G M E N T**
## **K.M.JOSEPH,J**
The appellant is the second opposite party in a proceedings under Section 22 of the Workmen's Compensation Act. It calls in question the order passed by the Commissioner by which it has been called upon to pay a sum of Rs.66,301/- with interest at 12% per annum from the date of the accident.
2. The case put forth by the applicant before the Commissioner is briefly as follows:
He was employed by the first opposite party for loading and unloading of stones to and from the vehicle bearing Regn.No.KL7-0-7142 owned by him. On 31/10/2000 at about 5.00 p.m. while he was engaged in unloading of stones from the said vehicle, a big stone fell on his right leg and he sustained serious injuries.
3. Before the Commissioner, oral evidence was adduced by the wife of the applicant and another witness. Exts.A1 to A9 were produced. There was no evidence on the side of the respondents.
2
M.F.A.No.86 of 2006
4. In the appeal, the substantial question of law purported to be raised are as follows:
(A) Considering the facts and circumstances of the case, especially in the light of the denial of the accident, whether the Court below is justified in rejecting the petition submitted by the applicantcompany to summons and examine the 1[st] opposite party-2[nd] respondent herein.
(B) Considering the facts and circumstances of the case, in a case where the accident is denied, whether the Court of Workmen Compensation Commissioner is bound to insist for the production of wound certificate and criminal court records like FIR in order to prove the genuineness of the claim.
5. We have heard the learned counsel for the appellant and the learned counsel for the 1[st] respondent. Though served, there is no representation for the second respondent who is the first opposite party/employer of the applicant. The learned counsel for the appellant would submit before us that this is a case where there is absolutely no basis for the finding that the applicant was a workman of the first opposite party. The appellant has produced before this Court Annexure A1 which is
3
M.F.A.No.86 of 2006
purported to be sworn to by the first opposite party/2[nd] respondent. The substance of the affidavit supports the case of the appellant that there is no employer-employee relationship. In the affidavit, the first opposite party would state that the vehicle was not involved in the accident and that she also denies that the applicant was her workman.
6. Therefore, it is pointed out that this is a case of fraud. A letter was in fact addressed to the Commissioner by the first opposite party therein on similar lines as is found in the affidavit as Annexure A1 in this case. Per contra, the learned counsel appearing on behalf of the applicant therein would submit that this is a case where reply notice was sent on behalf of the first opposite party where she did not dispute the employment or the accident. It is further pointed out that she engaged a counsel before the court below and a written statement was filed on similar lines as is found in the reply notice. It is further pointed out that reply notice was sent by one lawyer and the written statement was filed by yet another lawyer. It is further contended that in case of fraud, it is settled law that it is for the party to prove the fraud. Therefore the ingredients for the proof
4
M.F.A.No.86 of 2006
of fraud is clearly wanting , he contends.
7. He also relied on judgments of this Court in **N.L.Lalan v. V.A.John [1972 KLT 132]** and **Raveendran v. Somavally [1995(2) KLJ 319].** In **N.L.Lalan** (Supra), the
learned Single Judge has inter alia stated as follows:
“There is an initial obstacle in the way of the appellant because the first proviso to S.30, which confers the appellate power on the High Court, restricts appeals to cases where a substantial question of law is involved. I cannot exercise powers under S.30 unless I am satisfied on this jurisdictional point of a substantial question of law. It must be noticed that a question of fact however substantial, cannot masquerade as a question of law, and further that any question of law cannot automatically be treated as a substantial one even if the amount involved is substantial or the argument pressed is vehement. The expression 'substantial question of law' is not new to the Workmen's Compensation Act, 1923, but finds a place in S.110 of the Civil Procedure Code and Art.133 of the Indian Constitution. May be, that the meaning of words may change depending on the context in which they occur and the statute
5
M.F.A.No.86 of 2006
which uses them. Even so, there must be something substantial about a substantial question of law. Out of deference to the words of the statute 1 must remind myself that what is contemplated is not a question of law alone; it must also possess the attribute of substantiality. If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to the operation of the Act itself, one may designate the question of law as substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficulty of applying the facts to that law cannot make it a substantial question of law.”
The said principle has been adverted to and followed by a Division Bench in the decision reported in **Raveendran** (Supra).
8. No doubt, the learned counsel for the appellant would point out that this is a case where the appellant had filed a petition seeking issue of summons to the first opposite party to give evidence and denial of that request resulted in essentially miscarriage of justice and gives rise to a substantial question of law. To the same, the learned counsel for the appellant would
6
M.F.A.No.86 of 2006
point out that an argument note was filed on behalf of the appellant wherein the appellant does not appear to have pursued the request to call the first opposite party as witness. He would also contend that it is well settled law that one party cannot insist for the examination of the opposite party. To the same, the learned counsel for the appellant would point out that under the terms of the Contract of insurance the insured is obliged to render all assistance to the insurer in the prosecution of the contentions of the insurer.
9. We are of the view that we need not interfere. As correctly pointed out, an appeal cannot be entertained unless a substantial question of law is made out. In this case, on the basis of evidence before the Commissioner which we have already adverted to, the Commissioner has taken a decision. This is a case where the first opposite party issued a reply notice stating that an accident took place and that the applicant was her workman. What is more important is apparently she decided to engage the service of another lawyer in the proceedings before the Commissioner. Therefore, she engaged another lawyer and filed a written statement before the Commissioner. In the
7
M.F.A.No.86 of 2006
written statement also, she has chosen to toe the same line as she had taken in the reply notice, that is to say, she has stated that the accident had taken place and the applicant was her workman.
10. There is another aspect of the matter. Even if we were to accept the request of the appellant allowing her to be examined even ignoring the contention of the applicant that she cannot be called as a witness and we presume that she gives evidence in support of the contention of the appellant, it will be her word against the word of the applicant and we will again be thrown back in the realm of appreciation of evidence. Having regard to all circumstances present in this case, we would think that the appellant has not made a case for interference. Consequently, this appeal is dismissed.
## **(K.M.JOSEPH, JUDGE)**
## **(A.M.SHAFFIQUE, JUDGE)**
jsr
// True Copy// PA to Judge
M.F.A.No.86 of 2006 8
M.F.A.No.86 of 2006 9
10
M.F.A.No.86 of 2006
**K.M.JOSEPH & M.C.HARI RANI, JJ.**
.No. of 200
ORDER/JUDGMENT
30/082010
