Jyothindranath v. Ashwin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **MFA.No.64 OF 2019** **AGAINST THE ORDER IN ECC 139/2016 DATED 29-11-2018 OF THE COURT OF EMPLOYEES COMPENSATION COMMISSION (INDUSTRIAL TRIBUNAL), THRISSUR** ## **APPELLANT/OPPOSITE PARTY:** **JYOTHINDRANATH AGED 65 YEARS, S/O SURENTRANATHAN, PROPRIETOR, JYOTHI RUBBERS, P.O. VILAVATTOM, THRISSUR DISTRICT, PIN 680124, RESIDING AT CHAITHANYA PURATHATTIL (H), KONATHUKUNNU, THRISSUR DISTRICT.** **BY ADVS. SHRI.PRABHU K.N. SHRI.MANUMON A.** ## **RESPONDENT/APPLICANT:** **ASHWIN** **AGED 24 YEARS, S/O, THEKEPOLLUVATH ANANDA KRISHANAN, ANANDA SADANAM, P.O. PULLUT, NOW RESIDING AT THEKKEPOLLUVATH HOUSE, P.O. PERINJANAM, THRISSUR DISTRICT - 680686** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA.No.64 OF 2019 2** ## **JUDGMENT** The appellant is the opposite party in E.C.C.No.139 of 2016 on the file of the Court of the Employees Compensation Commissioner (Industrial Tribunal), Thrissur, and he impugns the final order of the said Court, as per which, he has been mulcted with the liability to pay an amount of Rs.2,67,252/-, along with interest, to the respondent herein, finding that the latter was employed under him when he met with an accident on 20/06/2002. 2. The appellant says that the impugned order is unsustainable in law, since the employer-employee relationship between the parties has not been established; and further that the specific contention raised by him that the claim itself is hit by limitation under the provisions of Section 10 of the Employees Compensation Act, 1923, has not been adverted to by the Compensation ## **MFA.No.64 OF 2019 3** Commissioner, nor considered. The appellant thus prays that this appeal be allowed and the impugned order be set aside. 3. Even though notice from this Court has been validly served on the respondent, he has chosen not to be present before this Court or to be represented through counsel, constraining this Court to dispose of this appeal in his absence. 4. I have examined the order of the Compensation Commissioner and have also evaluated the evidence and the materials available, copies of which have been handed over by the learned counsel for the appellant across the Bar. 5. The evidence on record would show that denial of the employer-employee relationship by the appellant was made on the strength of Ext.R1 Muster Roll, but, as rightly found by the Compensation Commissioner, this is not an authenticated ## **MFA.No.64 OF 2019 4** document and is not signed by any competent Authorities. It might as well, therefore, be a document prepared by the appellant for the purpose of this case and I cannot, resultantly, find the conclusion of the Compensation Commissioner, that Ext.R1 cannot come to the aid to the appellant, to be in error. 6. That said, Shri.K.N.Prabhu, learned counsel for the appellant, took me extensively through the evidence of respondent/claimant while he deposed as PW1, to show that there are inconsistencies as regards the time when the shift of the work in the Unit began; the names of the co-employees who were employed at that time; the period during which he worked under the opposite party; the identity of the person who took him to the hospital after the accident; and description of the machinery in the Unit and contended vehemently that, therefore, this Court ## **MFA.No.64 OF 2019 5** should find the conclusions of the Compensation Commissioner to be without merit. 7. However, when I examine the evidence, including the testimony of the witnesses, am drown to certain opinion that the inconsistencies now pointed out by Shri.K.N.Prabhu can, at the best, be only on account of the short-fall in memory of the respondent, which is normal on account of the lapse of more than fifteen years between the date on which the accident occurred and the date on which the testimony was recorded in the year 2018. I cannot, therefore, find these small inconsistencies to be fatal to the case of the claimant/respondent and consequently, repel the contentions of Shri.K.N.Prabhu on these issues. 8. That apart, as I have already said above, the appellant has not produced any ## **MFA.No.64 OF 2019 6** evidence on record to show that the respondent was not employed by him except Ext.R1 and since this document cannot be accepted by this Court, I find no reason to disturb any of the findings of the Compensation Commissioner as regards the employer-employee relationship between the parties. 9. That said, the issue as to whether the claim is hit by limitation under Section 10 of the Employees Compensation Act, is certainly one that engages my mind because, even though the objections filed before the Compensation Commissioner by the appellant show without doubt that he had raised this specifically, for some reason, the Court did not frame it as an issue nor was this considered at any point of time, as is evident from the impugned order. 10. This is relevant because, as per the case of the appellant, the accident ## **MFA.No.64 OF 2019 7** occurred on 20/06/2002, while the claim was preferred by the respondent herein only in July 2005, which is much more than three years thereafter. Going by the provisions of Section 10 of the Employees Compensation Act, no claim for compensation shall be entertained by the Commissioner unless notices to the accident had been given in the manner provided as soon as practical after the accident and unless the claim is preferred within two years of the occurrence of the accident. The contentions of the appellant that the claim was preferred after three years of the accident certainly, therefore, is an issue that the Compensation commissioner ought to have considered. In the absence of any such consideration being done by the said Court, I am of the view that this matter requires to be reconsidered by it, however, on this specific issue and nothing else. Resultantly, this appeal is allowed to ## **MFA.No.64 OF 2019 8** the afore extent; and I consequently remand this matter for fresh consideration to the Court of the Compensation Commissioner, however, solely on the issue as to whether the claim of the respondent herein is hit by limitation under the provisions of Section 10 the Employees Compensation Act. In all other respects the impugned order of the Compensation Commissioner is confirmed, subject to its view to be arrived at on the aspect of limitation. At this time, Shri.K.N.Prabhu interjected to assert that his client has also raised a contention against the percentage of disability which the Compensation Commissioner has found as being 50%, but which the appellant asserts cannot be more than 20%, going by Schedule 1 Part II(9) read with Section 36 of the Employees Compensation Act. The submission of Shri.K.N.Prabhu on this aspect is that, even assuming that all facts are admitted, ## **MFA.No.64 OF 2019 9** the Court could not have taken 50% to be the percentile applicable, since, as per the mandate of Schedule 1 Part II(9), read with Section 36 of the Employees Compensation Act, the disability could have been taken to be only 50%. However, as is evident from Ext.A12, which is the opinion of the Medical Board consisting of three Doctors from three different branches of Medicine, the respondent has been found to have sustained a permanent disability of 40% and a loss of earning capacity of 50%. Further, as has been rightly found by the Compensation Commissioner the appellant has not been able to point out any reason why the report of the Medical Board should not be accepted and no evidence was led by him to establish to the contrary. Hence, since Ext.A12 has not been contested by the appellant in any manner nor its genuineness disputed, I cannot find any error in the Compensation Commissioner having accepted ## **MFA.No.64 OF 2019 10** it, going by the well settled principles of law established by this Court in a catena of judgments including _**United India Insurance Company Limited v. Selvaraj [2016 (4) KHC 302** ]_ and _**Joseph K.S. v. Prasanna [2012 (4) KHC 595]** ._ I cannot, therefore, find these contentions of Shri.K.N.Prabu to be worthy of the favour of this court and consequently repel the same. In the nature of the facts and circumstances seen above, I deem it appropriate not to make any order as to costs and thus direct the parties to suffer their respective costs. It is so ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/17.2.2020**