IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935
MFA.No. 137 of 2011 ( )
-----------------------WCC 56/2005 of COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER, KOLLAM
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APPELLANT(S)/OPPOSITE PARTY:
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KRISHNA MOORTHY @ GIRI, PROPRIETOR, SARATHY METAL CRUSHER AMBALATHUMBHAGOM P.O.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENT(S)/APPLICANT:
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SIVANKUTTY PILLAI,
JAYA BHAVANAM, MANAKKARA MURI, SASTHAMCOTTAH 645 034.
R,R1 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) R,R1 BY ADV. SRI.P.SREEKUMAR
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2013, THE COURT ON 12-07-2013 DELIVERED THE FOLLOWING:
## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------M.F.A.(WCA) No.137 of 2011 ----------------------------------------------Dated 12[th] July, 2013.**
## **J U D G M E N T**
This appeal is filed by the opposite party in W.C.C. No.56/05 on the file of the Commissioner for Workmen's Compensation, Kollam. The respondent herein was the applicant in that case, which was filed by him under Section 22 of the Workmen's Compensation Act, 1923 (for short, 'the Act'), claiming a lumpsum amount of `1,00,000/- as compensation on account of the personal injury sustained by him while he was working under the opposite party.
2. The case of the applicant in W.C.C.No.56/05 is briefly as follows : The applicant was permanently employed by the opposite party in M/s.Sarathy Metal Crusher Unit owned by the opposite party, for the last 3½ years. The applicant was engaged in regulating the load of metal near the motor belt. On 12.2.2005 at about 3.30 p.m., when the applicant was doing the work, the conveyor bucket of the machine in the crusher unit became jam and as per the direction of the opposite party, the applicant tried to loosen the affected part of the machine and while trying to rotate the conveyor belt manually, the right
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palm of the applicant happened to be in between the belt and motor pulley and thereby his right palm was crushed. As a result of this accident, the applicant sustained serious injuries. Immediately, he was taken to Mar Theodosius Medical Mission Hospital, Sasthamkottah. From there, he was referred to Sanker's Hospital, Kollam. After giving first aid, he was admitted in that hospital on 12.2.2005 and was discharged on 20.2.2005. He claimed `1,00,000/- as compensation.
3. After preliminary examination, the case was taken into file and notice was issued to the opposite party. The opposite party entered appearance through counsel and filed written statement. In his written statement, the opposite party denied all the averments in the application. He contended that the applicant was never employed by him in his metal crusher unit at any point of time. Another contention of the opposite party was that one Anilkumar, owner of the tipper lorry bearing registration No.KL-7R-2921 had approached the opposite party that he will supply rocks at Vakkom, Kottarakkara to the metal crusher unit and the opposite party agreed to the supply of
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rocks as and when it was unloaded. Accordingly, rocks were brought by Anilkumar under the guidance and control in the above-said tipper lorry. The applicant was working as a loader in the above vehicle and he had sustained some trivial injuries while he had been unloading rocks from the tipper lorry. The aforesaid accident happened to the applicant while he was working in and out of the course of employment of Anilkumar.
4. The Workmen's Compensation Commissioner framed necessary issues. When the case was posted for evidence, the applicant filed proof affidavit and Exts.A1 to A7 were marked. Nobody was examined on the side of the opposite party. In the judgment, it is stated that after filing a memo for cross-examining the applicant, the opposite party did not turn up and not utilised the chance given to him for crossexamining the applicant and for adducing evidence on his part. The Workmen's Compensation Commissioner, on considering the evidence on record, found that the applicant was a 'workman', as defined under the Act and that the accident and injury arose out of and in the course of his employment with the
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opposite party and allowed the application and directed the opposite party to deposit `91,854/- together with interest at the rate of 12% per annum from the date of the accident till the date of deposit. The opposite party was directed to deposit the amount within 30 days of receipt of the intimation of the judgment, failing which the entire amount was directed to be recovered as if the arrears on land revenue. Against that judgment, the opposite party filed this appeal under Section 30 of the Act.
5. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.
6. The learned counsel for the appellant submitted that the Commissioner allowed the application without any proof regarding existence of an employer-employee relationship. The learned counsel for the appellant, relying on the decision reported in United India Insurance Co. Ltd. v. Komalam [2007(4) KHC 703 (DB)] argued that the burden of proof is entirely on the applicant to prove that there was employer-employee relationship at the time of accident. The
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learned counsel for the appellant further submitted that the applicant had not produced any evidence to prove that he had been employed by the opposite party at the time of accident. The learned counsel for the appellant submitted that the Commissioner placed strong reliance on the fact that the opposite party had not adduced any evidence to prove his case. The learned counsel for the appellant submitted that the appellant could not cross-examine the applicant and therefore, the case may be remanded to the Commissioner for giving an opportunity to the appellant to cross-examine the applicant. The learned counsel for the appellant submitted that the appellant is not challenging the quantum of compensation awarded by the Commissioner. The learned counsel for the respondent supported the judgment under challenge.
7. The records of the Workmen's Compensation Commissioner would show that the applicant filed a proof affidavit stating that he was employed in M/s.Sarathy Metal Crusher Unit owned by the opposite party and on 12.2.2005 at 3.30 p.m., while he was doing his work at the instructions given
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by the opposite party, he met with an accident and sustained injuries. In the affidavit, it is further stated that he was working in the crusher unit for the last 3 ½ years before the accident. In the affidavit, it is further stated that just before the accident, the conveyor bucket of the machine in the crusher unit became jam and with a view to loosen the affected part, the opposite party directed the applicant to rotate the belt manually and while doing that job, the right palm of the applicant happened to be in between the belt and motor pulley and thereby his right palm was crushed and as a result, he sustained serious injuries such as amputation of right ring finger tip and tip of the thumb, crush injury to middle and little fingers and avulsion fracture to the right thumb.
8. The applicant was not cross-examined by the opposite party. Ext.A1 is the accident-cum-wound certificate issued from Mar Theodosius Medical Mission Hospital, Sasthamkottah. Column No.8 of Ext.A1 relates to the history and alleged cause of injury. In that column, it is stated that the injury to fingers of right hand of the petitioner was caught
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between conveyor while working at Sarathy Crusher. Ext.A1 shows that the applicant was examined in that hospital on 12.2.2005 at 4.45 p.m. and he was referred to Sanker's Hospital, Kollam. Ext.A2 is the discharge certificate issued from Sanker's Hospital, Kollam showing that the applicant was admitted in that hospital on 12.2.2005 and was discharged on 20.2.2005. Ext.A3 is the medical certificate issued from that hospital. Ext.A7 is the disability certificate issued by the Medical Board stating that the applicant is having 25% permanent disability.
9. In the written statement filed by the opposite party, it is stated that the opposite party is keeping necessary registers regarding the names and addresses of his employees. But, the opposite party has not produced that register to show that the applicant was not an employee of the opposite party. An appeal under Section 30 of the Act against an order of the Commissioner lies only when a substantial question of law is involved. The expression 'substantial question of law' is not defined in the Code of Civil Procedure or in the Act. Recording
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a finding without any evidence on record involves a substantial question of law. In the present case, the applicant was not cross-examined by the opposite party and the opposite party did not produce the best evidence available with him to disprove that the applicant was not employed by him. Therefore, the Workmen's Compensation Commissioner is fully justified in finding that the applicant was a workman, as defined under the Act and the accident and the injury arose out of and in the course of his employment with the opposite party. Since that finding is based on legally admissible evidence on record, I find no reason to interfere with the judgment of the Workmen's Compensation Commissioner. In that view of the matter, I also find no reason to remand the case for fresh disposal.
Accordingly, this appeal is dismissed, as it is without any merits. There is no order as to costs.
Sd/-
## **M.L.JOSEPH FRANCIS, JUDGE.**
tgs
(true copy)
