M. F. A. No. 57 of 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935 ## **M. F. A. No. 57 of 2012** ------------------------------------- (AGAINST THE ORDER IN WCC 46/2004 DATED 04.7.2011 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR. ,,,,,,,,,,,,,,,,,,,,,,,,,, APPELLANT(S)/2ND OPPOSITE PARTY: ------------------------------------------------------ THE ORIENTAL INSURANCE COMPANY LIMITED, KUNNAMKULAM NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/APPLICANTS AND IST OPPOSITE PARTY: ---------------------------------------------------------------------------------- ## 1. RAPPAI, S/O.VAREED, VADAKKOODAN HOUSE, THEKKUMKARA.P.O PUNNAMPARAMBU, THRISSUR DISTRICT-680320. ## 2. REENA, W/O.PAULSON, MANDUMPAL HOUSE, PORKULAM.P.O THRISSUR DISTRICT, PIN-680320. ## 3. V.M.RIYAS, MOTHER VILLA, HINDUSTAN FOUNDARY LANE, POOTHOLE THRISSUR, PIN-680320. R3 BY ADV. SRI.P.SANTHOSH (PODUVAL) R3 BY ADV. SMT.R.RAJITHA R1,R2 BY ADV. SRI.HRITHWIK R1,R2 BY ADV. SRI.SHAJIN S.HAMEED THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K. M. JOSEPH & A. HARIPRASAD, JJ. ----------------------------------------------------M. F. A. (WCC).NO. 57 OF 2012 ----------------------------------------------------Dated this the 17[th] October, 2013** ## **JUDGMENT** ## **K. M. Joseph, J.** Appellant is the second opposite party in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 (renamed as the Employees' Compensation Act). By the impugned order, the Commissioner has directed the appellant to pay a sum of ₹. 3,44,448/= with simple interest at 12% from the date of accident along with funeral expense of ₹.2,500/=. It is feeling aggrieved by the same, the appellant is before us. 2. The case of the applicants, inter alia, was as follows: The deceased Reeson was a workman employed by the 1[st] opposite party as a car driver. On 25.1.2004 at about 4 A.M. there was a motor accident. He sustained serious injuries and later, he succumbed to the injuries as a result of the accident. _**M.F.A.(WCC).NO.57 OF 2012 2**_ 3. The appellant raised various contentions. The ## Commissioner raised the following Issues: “ _1) Whether the deceased was a workman as defined in the Act DLC/TSR and whether there were employer-employee relationship between the 1[st] opposite party and the deceased ?_ _2) Whether there is an accident arose out of and in the course of employment of deceased ?_ _3) The age and wages of the deceased at the time of accident ?_ _4) Whether the applicants are entitled to get workmen's compensation and if so, the quantum of compensation payable ?_ _5) Which of the opposite party is liable to pay compensation ?_ ” ## The discussion as far as Issues 1 and 2 is as follows: _“The case of the applicant is that the deceased was a workman under 1[st] opposite party and deceased sustained severe injuries in the accident occurred on 25.1.2004. The 1[st] opposite party who is the employer_ _**M.F.A.(WCC).NO.57 OF 2012**_ _**3**_ _of the deceased declared ex parte in this case. The 2[nd] opposite party strongly disputed the claim of the applicant. Regarding the accident, the Koratty Police registered the Crime No.36/2004 which is marked as Ext.A1. Ext.A2 is a copy of Post Mortem Report. Ext.A3 is a copy of Charge sheet. The 1[st] applicant admit that in the cross examination and also in the cross examination the 1[st] applicant says that the deceased was a workman as a driver under the 1[st] opposite party just before two months of the death of the deceased. The 2[nd] opposite party has not proved their contention with the valid documentary evidence. Ext.A4 is Original Driving License of the deceased. Ext.A5 is Relationship certificate._ _Considering all the evidence adduced before this court, I decide that the applicant was a workman as defined under section 2(l)(n) of the Act and there was employer-employee relationship between the 1[st] opposite party and the deceased and the accident arose out of and in the course of his employment under 1[st] opposite party. The above two issues are decided accordingly.”_ _**4**_ ## _**M.F.A.(WCC).NO.57 OF 2012**_ The appellant has purported to raise the following substantial questions of law: _“(1) Whether the Commissioner is justified in finding that the deceased was employed as a driver of the car insured with the appellant when the car was actually not owned by the 3[rd] respondent?_ _(2) Whether the Commissioner is justified in rejecting the investigation report of MW1 to the effect that the deceased was actually employed by one Danish in his Jewellary shop who was also the owner of the car ?_ _(3) Whether the Commissioner is justified in holding that the deceased who was casually driving the car can be considered as employed 'as a driver' under the proviso to Section 147 of the M.V. Act ?_ _(4) Whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of accident ? ”_ 4. We heard the learned senior counsel for the appellant and also the learned counsel appearing on behalf of respondents 1 and 2. _**5**_ _**M.F.A.(WCC).NO.57 OF 2012**_ 5. Learned senior counsel for the appellant would point out that for laying a claim for compensation under the Act, the applicants must establish the existence of employer-employee relationship. In this regard, the case of the appellant is that actually there is no employer-employee relationship as alleged by the applicants and on the other hand, the deceased was actually employed by one Danish who was also conducting a jewellery business. Though the vehicle stood in the name of the 1[st] opposite party in whose favour there was an insurance policy at the time of the accident, the vehicle was owned by Danish. Apparently, to establish their contention, the appellant has examined one George Thattil as MW1 who is shown as the investigator. Exts.M1 to M3 purport to be copies of investigation reports. Ext.M4 is the Statement of the 1[st] opposite party. A perusal of the discussion on Issues 1 and 2 would clearly show that the Commissioner has not considered the oral evidence adduced on the side of the appellant. _**6**_ _**M.F.A.(WCC).NO.57 OF 2012**_ The documentary evidence also has not been adverted to. There is a failure to advert to the evidence adduced before the Commissioner. In the circumstances of the case, we are of the view that the appellant must succeed, in that, the Commissioner must consider the matter afresh. 6. As regards the question of law raised as to whether there is justification for granting of interest at 12% from the date of the accident, that is a question which stands answered against the appellant by virtue of the decision of the Apex Court in _**Oriental Insurance Co. Ltd.**_ v. _**Siby George**_ (2012 (3) KLT 544). Hence the said question is answered against the appellant. This means that if the Commissioner holds in favour of the claimants, our Judgment should not stand in the way of the Commissioner awarding interest at the statutorily fixed rate from the date of the accident. Equally, learned counsel for the appellant does not press before us question of law No.(3). Accordingly, we set aside the impugned order and _**M.F.A.(WCC).NO.57 OF 2012 7**_ remit the matter back. Parties will appear before the Commissioner on 12.11.2013. The Commissioner will proceed to consider the matter afresh and take a decision within a period of three months from 12.11.2013. The amount which has been deposited by the appellant shall not be disbursed and the disbursement will depend upon the decision to be taken by the Commissioner. The Appeal is allowed as above. **Sd/=** **K. M. JOSEPH JUDGE** **Sd/= A. HARIPRASAD JUDGE** **kbk.** _**//True Copy//**_