Janardhanan Pillai Lotus Engineers and Contractors Kerala Private Ltd v. Mohanan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945** **MFA (ECC) NO. 152 OF 2019** **ECC 531/2014 OF EMPLOYEES COMPENSATION** ## **COMMISSIONER,KOLLAM** ## **APPELLANT/OPPOSITE PARTY:** **JANARDHANAN PILLAI LOTUS ENGINEERS AND CONTRACTORS KERALA PRIVATE LTD, OPPOSITE FIRE STATION, KARUNAGAPALLY, KOLLAM DISTRICT.** **BY ADVS. S.SREEKUMAR (KOLLAM) SRI.K.VIJAYAN (V 726)** ## **RESPONDENT/APPLICANT/PETITIONER:** **MOHANAN AGED 55 YEARS, S/O. KUNJU KUNJU, PUTHEN PURAYIL BHAGYALAYAM, OACHIRA, KOLLAM DISTRICT, PIN-690526.** **BY ADVS. SRI.K.SIJU SMT.S.SEETHA** **THIS MFA (ECC) HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON 01.12.2023 DELIVERED THE FOLLOWING:** _**MFA(ECC).152/2019**_ 2 ## J U D G M E N T Dated this the 1[st] day of December, 2023 This is an appeal filed under Section 30 of the Employee's Compensation Act by the opposite party in ECC.No.531/2014, against the order of the Employee's Compensation Commissioner and Industrial Tribunal, Kollam against the order dated 22.2.2019. 2. Respondent was the employee of the appellant as mason. On 23.5.2011 at about 9.30.am while he was applying grease to the mixing machine, his right hand accidentally touched the roller of the machine and thereby he sustained serious injuries. At the time of the incident, he was aged 47 years, getting monthly wages of Rs.10,000/-. He filed application before the Employee's Compensation Commissioner, claiming a sum of Rs.2,00,000/-. As per the impugned order dated 22.2.2019, the Commissioner awarded a compensation of Rs.86,101/- along with interest @ 12% per annum. Aggrieved by the above order, the opposite party filed this appeal raising various contentions. _**MFA(ECC).152/2019**_ 3 3. According to learned counsel for the appellant, there is no employer-employee relationship between the appellant and the respondent and hence the impugned order passed by the Employee's Compensation Commissioner is liable to be set aside. 4. On the other hand, the learned counsel for the respondent would that the decision taken the argue by Employee's Compensation Commissioner on facts, cannot be re-agitated in an appeal filed under Section 30 of the Employee's Compensation Act. Further, according to him, in this case there is no question of law involved and as such he prayed for dismissal of the appeal. 5. The points that arise for consideration are the following: 1. Whether the finding of the Employee's Compensation Commissioner that there exists employer-employee relationship between the appellant and the respondent, is perverse or without any evidence? 2. Whether the impugned order calls for any interference in the light of the grounds raised in the appeal? 6. Heard both sides. _**MFA(ECC).152/2019**_ 4 7. According to the respondent, while he was working as mason under the appellant for the construction of a building, he met with an accident and sustained injuries. The appellant disputes the employer-employee relationship. 8. In this case, the respondent was examined as AW1 and another witness was examined as AW2. The respondent as AW1 adduced evidence to the effect that on 23.5.2011, at about 9.30 am, while he was applying grease to the mixing machine in connection with the construction of a three storied building, his right hand accidentally touched the roller of the machine and in the incident, his right index finger was to be amputated. Exhibit A2 discharge card issued from Medical College Hospital, Thiruvananthapuram, also states that his right index finger was amputated. During the crossexamination, AW1 deposed that he was working in Lotus Company and the building under construction was for Lotus Company. In the written statement filed by the appellant, it is admitted that the appellant is the Managing Director of Lotus Company. AW2, a coworker of the respondent also spoken about the incident, in which the respondent lost his right index finger. It appears that AW2 was _**MFA(ECC).152/2019**_ 5 not even cross examined by the appellant. Therefore, from the evidence of AWs 1 and 2 it can be safely concluded that the respondent was an employee as defined under S.2(1)(dd) of Act 8 of 1923. 9. At the time of arguments, the leaned counsel for the appellant relying upon Exhibit A7, would argue that the building was constructed only in the year 2013-14 and the alleged incident was on 23.5.2011. Therefore, an attempt was made to show that both the buildings are different. It is true that in Exhibit A7, received by the appellant under the Right to Information Act, it is stated that the building was constructed in the year 2013-14. However, from the evidence of AW1 and AW2, it is evident that construction of the above building was started in the year 2011 itself. From the evidence of AW1 and AW2, it is revealed that the respondent sustained serious injuries while he was working as mason in the construction of a building for the appellant and as such the Employee's Compensation Commissioner was justified in holding that there exists employer-employee relationship between the appellant and the respondent. _**MFA(ECC).152/2019**_ 6 10. The learned counsel for the appellant relied upon the decision of Hon'ble Supreme Court in **Shantabai Ananda Jagtap v. Jayaram Ganpati Jagtap [2023 KHC 6674]** in support of his argument. In the above decision, the victim died on 17.8.1993. Immediately, his legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, before the MACT and obtained an award in their favour on 7.3.2003. Thereafter, they filed an application before the Commissioner under the provisions of Act 8 of 1923, claiming compensation with a long delay of 9 years. The owner of the vehicle was the brother of the deceased. They were having common ration card and were members of the same Joint Hindu Family. The owner of the vehicle also did not appear before the court after receiving notice. In the above circumstances, it was found that there was no employer-employee relationship between the owner of the vehicle and the deceased. The facts of the present case are entirely different and as such the above decision does not apply to the instant case. 11. In the incident, the respondent's right index finger has to be amputated. The Commissioner found that as per the schedule of _**MFA(ECC).152/2019**_ 7 the Employee's Compensation Act, the respondent sustained 11% loss of earning capacity and accordingly estimated the compensation at Rs.86,101/-. There is absolutely no grounds to interfere with the above estimation of compensation and as such the finding of the Commissioner cannot be termed as perverse or without any evidence. 12. At the fag end of the argument, the learned counsel for the appellant prayed for remanding the matter to give an opportunity to adduce evidence and to cross examine AW2. However, there is no such prayer in the appeal. Moreover, an appeal filed under Section 30 of the Employee's Compensation Act will lie only in respect of substantial question of law, which is lacking in this case. 13. In the decision in **Shahajahan & another v. Shriram General Insurance Company Ltd. & another [2021 ICO 2481]** , the Hon'ble Supreme Court deprecated the practice of deciding an appeal filed under Section 30 of the Employee's Compensation Act, as if it is a first appellate court on a question of fact as well. 14. In the decision in **Fulmati Dhramdev Yadav & Another** **v. New India Assurance Company Ltd. & Another [AIR 2023 SC** 8 _**MFA(ECC).152/2019**_ **4438]** relied upon by learned counsel for the appellant also, the Hon'ble Supreme Court held that since the Employee's Compensation Act is a social welfare legislation, it must be given a beneficial construction. The Commissioner is the last authority on facts and the scope of appeal under the Act is limited only to substantial question of law. 15. In the above factual situation, no useful purpose will be served by a remand. I do not find any merit in the appeal and as such it is liable to be dismissed. The points answered accordingly. In the result, the appeal is dismissed. Sd/C. PRATHEEP KUMAR, JUDGE sou.