MFA (ECC) No. 140 of 2017 (Secretary, Mattannur Range Kalluchethu Vyavasaya Thozhilali Sahakaran Sangam Ltd vs Biju U.K. and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **MFA (E.C.C).No. 140 of 2017** **AGAINST THE ORDER IN ECC 266/2014 of INDUSTRIAL TRIBUNAL & EMPLOYEES' COMPENSATION COMMISSIONER,KOZHIKODE DATED 21-02-2017** **APPELLANT/OPPOSITE PARTY No.1:** **THE SECRETARY, MATTANNUR RANGE KALLUCHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGAM LTD NO.1535,MATTANNUR.** **BY ADVS. SRI.P.U.SHAILAJAN SMT.D.N.NISHANI SRI.M.SURESH KUMAR** ## **RESPONDENTS/APPLICANT & OPPOSITE PARTIES 2 AND 3:** **1 BIJU.U.K AGED 40 YEARS,S/O.KUTTAPPAN,UDAYAPPARA HOUSE,KOSAVAN VAYAL.P.O,THAIKUNDAM,KANNUR DISTRICT-670593. 2 THE SECRETARY IRITTY RANGE KALLUCHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGAM LTD,IRITTY.P.O,KANNUR-670703. 3 ORIENTAL INSURANCE COMPANY LTD UNITY COMPLEX,S.N.PARK ROAD,KANNUR-670001.** **BY ADVS.** **R1 - SRI.BALU TOM R1 - SMT.K.A.SANJEETHA R3 - SRI.P.JACOB MATHEW** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA(ECC)No.140 of 2017** **2** ## **A. HARIPRASAD. J.** ## **------------------------------------------M.F.A.(E.C.C.)No. 140 of 2017** **------------------------------------------------Dated this the 7[th] February. 2019.** ## **JUDGMENT** Appellant is the first opposite party in E.C.C NO.266 of 2014 before the Employees' Compensation Commissioner, Kozhikode. An application under section 22 of the Employees Compensation Act 1923 (in short “Act”) was filed by the first respondent before the Commissioner claiming compensation for personal injuries sustained by him on 16.03.2008. According to the applicant/first respondent, he was employed under the appellant as a toddy tapper. On 16.03.2008 at 5.30 pm, he suffered injuries by falling from a coconut tree and the accident arose out of and in the course of his employment. He was taken to AKG hospital, Talap, Kannur and thereafter to A.J. Centre, Mangalore. He was admitted in A.J Centre, Mangalore from 17.03.2008 to 09.04.2008. He had undergone a number of surgeries. Thereafter he was admitted in Pariyaram Medical College Hospital on various occasions. At present, he is undergoing Ilizarov treatment for shortening of his right leg. The **MFA(ECC)No.140 of 2017** **3** applicant sustained fracture on his right leg making it impossible for him to do the avocation of a coconut climber. Therefore he claimed a compensation of Rs.4 lakhs. 2. The appellant / first opposite party admitted that at the time of accident, the applicant was an employee under it. Further fact that the accident occurred during the course of employment is also admitted. However, it is contended by the first opposite party that the applicant had sustained only minor injuries and he sustained only a partial disability of a temporary nature. It is also contended that the toddy workers, including the applicant, working under the appellant were insured with the third opposite party under a personal accident policy. Applicant had made claim for compensation from the third opposite party through the first opposite party and he had received amounts from the insurance company. Therefore, the insurer was sought to be impleaded and later the insurance company was impleaded as third respondent. The quantum of compensation claimed is exorbitant. The percentage of injury claimed is also exorbitant. 3. Before the Commissioner, the applicant deposed as AW1 and RW1 is the representative of the first opposite party. Exhibits A1 to A10 and B1 to B4 are the documents marked on both sides. After **MFA(ECC)No.140 of 2017** **4** considering the evidence, the Commissioner granted an amount Rs.4,67,136/- with 12 % simple interest with effect from 16.03.2008 till deposit. 4. Heard the learned counsel for the appellant and the first respondent. 5. According to learned counsel for the appellant, Employees' Compensation Commissioner, without any legal justification determined the compensation. Further the appellant was denied an opportunity to cross-examine AW1 (the applicant) and the untested testimony of AW1 was accepted wrongly by the Commissioner. 6. Learned counsel for applicant / first respondent opposed this submission contending that there was ample opportunities for the appellant to cross-examine the witness. The appellant remained ex party in the proceedings and after sometime the appellant filed an application to set aside the ex party order; and thereafter they adduced evidence. Even then, they did not seek an opportunity to cross-examine the applicant. The proceeding paper would show that the appellant had a right and opportunity to cross-examine AW1, but the appellant did not chose to exercise that right. Moreover, evidence tendered by the applicant as AW1 when the appellant was remaining ex party cannot be **MFA(ECC)No.140 of 2017** **5** eschewed from consideration. But the fact remains that the compensation awarded by the Commissioner does not prescribe to the standards in _**Vanajakshan v Joseph (2003 KHC 437)**_ by Full Bench, wherein following guidelines are issued:- In view of the above, it is held that (1) The competent authority has to award compensation on the basis of evidence adduced by the parties during the proceedings. (2) The compensation has to be assessed with reference to the loss in earning capacity and not on the basis of ability to perform the duties of the particular job, which was being performed by the workman. If, in a given case a workman is able to prove that he was incapable of doing any other job, the competent authority shall consider and decide the matter in the light of the evidence as adduced by the parties.” 7. The record shows that the applicant sustained a fracture of right femur and it was a serious injury. However, as pointed out by the learned counsel for the appellant, it does not fall within any of the injuries **MFA(ECC)No.140 of 2017** **6** scheduled to the Act. It may be true that the applicant is incapacitated to pursue the occupation of a coconut climber on account of the injury, but there is no evidence to hold that he is 100% disable to do any income fetching job. This fact has to be established by the applicant. Overlooking this fact, compensation was worked out by the commissioner. 8. Learned counsel for the applicant / first respondent submitted that on account of the injury, he had undergone treatment and incurred expenses. According to the instructions of the learned counsel for the applicant, he has not received any amount. Whereas the learned counsel for the appellant relying on Exhibit B4 contended that Rs.81,914/- has been paid by way of a cheque to the applicant. However, this is a disputed fact. 9. The substantial questions of law arising in this appeal is regarding the legality of the order passed by the Commissioner in view of the decision mentioned above. 10. Having regarding to the facts and circumstances, I find that the substantial questions of law raised in the appeal has to be decided in favour of the appellant. However at the same time, the applicant/first respondent shall not be left in penury. It is the case of the appellant that **MFA(ECC)No.140 of 2017** **7** in order to maintain an appeal, the entire amount has been deposited as provided in Section 30 of the Act. 11. It is the contention raised by the learned counsel for the appellant that the applicant must have sustained only 10% disability. But this contention prima facie is not sustainable in the light of Exhibit A4. However those aspects also has to be established before the Commissioner and I do not wish to express any opinion on that since it is beyond the scope of this appeal. However the applicant shall be allowed to withdraw 1/3rd of the deposit amount, if the applicant did not receive Rs.81,914/-(Rupees Eighty one thousand nine hundred and fourteen only) as contended by him. If Rs.81,914/- has already been received by the applicant from the appellant, the applicant will be entitled to get only remaining portion of the amount mentioned above. The contention raised by the learned counsel for the applicant that premium has been collected from the workmen for insurance policy also shall be considered by the Commissioner. 12. The impugned order is set aside for the reason that it does not conform to the legal standards and the matter shall be reconsidered in the light of the aforementioned observations. The matter is remitted back to the Commissioner for a fresh consideration in the light of the **MFA(ECC)No.140 of 2017** **8** observations in this judgment. 13. The parties shall appear before the Employees' Compensation Commissioner, Kozhikode on 28th of February, 2019. The Commissioner shall dispose of the matter within a period of two months from the date of receipt of a copy of this judgment. **Sd/-** **A. HARIPRASAD JUDGE** **SCS** **==> picture [468 x 32] intentionally omitted <==** **MFA(ECC)No.140 of 2017** **9**