MFA (ECC) No. 30 of 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 14[th] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 MFA (ECC) NO. 30 OF 2018 AGAINST THE ORDER DATED 31.10.2017 IN ECC 471/2016 (WCC 56/2008) OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL), THRISSUR APPELLANT/4th OPPOSITE PARTY: M/s. C.T.S PACKERS & MOVERS, 41/269, PAI'S BUILDING, MKB ROAD, NEAR YWCA, ERNAKULAM, COCHIN 35, REPRESENTED BY IT'S MANAGING PARTNER V.V SUKESAN BY ADVS. SRI.T.K.RADHAKRISHNAN SMT.CHITHRA R.SHENOY SRI.T.R.HARI KRISHNAN SMT.K.L.SREEDEVI ## RESPONDENTS/1 TO 4 APPLICANT AND 5 TO 7 OPPOSITE PARTIES: 1 SUDHA RADHAKRISHNAN, AGED 46 YRS, W/o LATE RADHAKRISHNAN NAIR, AIYKKARA HOUSE, KUTICHIRA P.O,(VIA) CHALAKKUDY, THRISSUR 680 724 2 SEETHAL, AGED 23 YRS, D/o LATE RADHAKRISHNAN NAIR, AIYKKARA HOUSE, KUTICHIRA P.O,(VIA) CHALAKKUDY, TRISSUR 680 724 3 SIMAL, AGED 18 YRS, D/o LATE RADHAKRISHNAN NAIR, AIYKKARA HOUSE, KUTICHIRA P.O,(VIA) CHALAKKUDY, TRISSUR 680 724 4 AMMINI AMMA, W/o LATE KUTTAPPAN NAIR, AIYKKARA HOUSE, KUTICHIRA P.O,(VIA) CHALAKKUDY, TRISSUR 680 724 5 K N NAJEEB, KOYIKKAL HOUSE, 12/861, PADAMUGAL P.O, KAKKANAD, ERNAKULAM 682 030 6 THE ORIENTAL INSURANCE COMPANY LTD, BRANCH OFFICE, PUTHENPURAKKAL CHAMBERS, PALLURUTHY, COCHIN 682 006. MFA (ECC) No.30 of 2018 2 7 THE SECRETARY, KSEB, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM 695 001 R1 TO R3 BY ADV. SRI.V.C.MADHAVANKUTTY R6 BY ADV. A.R. GEORGE THIS MISC. FIRST APPEAL HAVING COME UP FOR HEARING ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA (ECC) No.30 of 2018 3 ## **JUDGMENT** The substantial question came up for consideration is whether the Compensation Commissioner is justified in exonerating the owner and insurer of the vehicle involved in the alleged accident and whether it is proper to fasten the entire liability on the appellant/4[th] respondent company and whether the owner of the vehicle is vicariously liable for the rash and negligent act of his employee, driver who allowed the deceased to stand in the top of the vehicle which was put stationary for loading beneath the power line. 2. The 4[th] respondent came up in appeal against the award passed by the Compensation Commissioner on account of the death of the victim who was employed in unloading parcel goods from a lorry owned by the fifth respondent. It is during the course of unloading, he met with an accident and succumbed to the injuries. His legal heirs came up before the Compensation Commissioner for getting compensation. The Compensation Commissioner passed an award MFA (ECC) No.30 of 2018 4 fastening liability against the appellant alone and exonerated the fifth respondent, the owner of the vehicle and the sixth respondent, the insurer of the vehicle. It is against that exoneration, the 4[th] respondent came up in appeal mainly on the reason that the alleged accident took place while the victim was unloading goods from a lorry owned by the fifth respondent and he was employed by the fifth respondent during the relevant time. The wife of the deceased gave oral evidence as AW1 and asserted that the victim was employed with the appellant prior to the incident, but admitted that at the relevant time, he was under the lorry owner. But no documentary evidence was adduced by either of the parties in that behalf. Admittedly, the alleged incident happened while unloading goods from the lorry owned by the fifth respondent. Necessarily, unless the contrary is proved, it has to be presumed that he was working under the fifth respondent and was an employee under him. In the instant case, the fifth respondent remained ex parte without raising any contention regarding the manner in which the alleged incident had happened and without disclosing whether the MFA (ECC) No.30 of 2018 5 victim was an employee under him or not. The sixth respondent/insurer contested the application raising the contention which is available to the fifth respondent/owner, but failed to prove the alleged relationship between the owner of the lorry and the persons who were employed therein for unloading goods. The fact that the goods belonged to the appellant company itself will not relieve the liability of the fifth respondent/owner of the vehicle, especially when documentary evidence regarding employment was neither produced nor let in evidence. As such, the legal position settled in **National Insurance Co. Ltd. v. Balawwa and others [1993 ACJ 815]** and **Gopakumar S. v. Chandran Nair G. and another [ILR 2017 (1) Kerala 1019]** will not render any assistance to the case advanced by the sixth respondent. 3. Admittedly, fifth respondent is the owner of the vehicle from which the alleged goods were unloaded by the victim and as such, it is upon the fifth respondent or the sixth respondent/insurer to show and prove that the victim was employed by somebody else and not by them, for which, there is no satisfactory evidence. The mere fact that the MFA (ECC) No.30 of 2018 6 lorry was carrying the goods entrusted with the appellant alone is not sufficient to fasten exclusive liability on them. 4. Further, the lorry was stationed beneath the power line by the driver who was admittedly the employee of the fifth respondent and allowed the victim to stand up over the goods for the purpose of unloading. This would clearly show that the driver who is bound to station the lorry in a safe place for the purpose of unloading has failed in his duty and negligence is attributable to his conduct by stationing the lorry just beneath the power line and allowed the victim to stand up above the goods carried in the vehicle for the purpose of unloading. This would show the negligence contributed by the employee of the fifth respondent, hence he is vicariously liable to compensate the applicants. The abovesaid mixed question of fact and evidence would also constitute a question of law when it relates to the core issue involved. 5. When there is contributory negligence on the part of the contractor, who took the goods of appellant company MFA (ECC) No.30 of 2018 7 for its transportation, Section 12 of the Employees Compensation Act, 1923 would come into play making the contractor, the fifth respondent/owner of the lorry, liable to indemnify the principal. That question was not decided by the Compensation Commissioner presumably on the reason that the fifth respondent was exonerated from the liability. As discussed earlier, the negligence contributed by the driver of the vehicle without taking precaution and by stationing the vehicle just beneath the power line would itself show the extent of negligence contributed. If it was stationed somewhere else or a safe place, the accident would not have happened. While viewing the real cause of the alleged accident under the abovesaid perspective, the negligence contributed by the driver of the vehicle is so large and cannot be estimated less than 50%. As such, the liability of indemnification is fixed at 50%. Hence, while fastening liability to pay the entire compensation awarded on the appellant, the fifth respondent is liable to indemnify the principal appellant to the extent of 50% of the compensation. Since the liability of fifth respondent stood covered by a valid insurance policy with the sixth 8 MFA (ECC) No.30 of 2018 respondent, it is fit and proper to direct the principal/employer, the appellant, to pay 50% of the award amount and the balance 50% by sixth respondent/insurance company to respondents 1 to 4/applicants. Hence, ordered accordingly. The appeal is allowed accordingly. No costs. **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/-