MFA (ECC) No.42 OF 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941** ## **MFA (ECC) No.42 OF 2019** **AGAINST THE ORDER DATED 29-01-2019 IN ECC 1121/2016 (WCC NO.142/2011) OF COURT OF COMMISSIONER FOR EMPLOYEES COMPENSATION (INDUSTRIAL TRIBUNAL), THRISSUR** ## **APPELLANT/OPPOSITE PARTY:** **THE PROPRIETOR, M/S.MARYMATHA TIMBERS, C.P/1723, PERUMBILISSERY, THRISSUR DISTRICT, PIN- 680 561.** **BY ADVS. SHRI.PRABHU K.N. SHRI.MANUMON A.** ## **RESPONDENT/APPLICANTS:** **V.S.PRASAD, S/O.SANKARAN, VALIYAPARAMBIL HOUSE, KIZHAKKUMURY, P.O.PERINGOTTUKARA, THRISSUR DISTRICT, PIN - 680 571.** **R1 BY ADV. SRI.A.JAYASANKAR R1 BY ADV. SRI.MANU GOVIND** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA No.42 OF 2019 2** ## **JUDGMENT** The proprietor of a Timber Unit/Saw Mill called 'M/s.Marymatha Timbers' has filed this Appeal against the Order of the Employees Compensation Commissioner, Thrissur in ECC.No.1121 of 2016. 2. The appellant assails the order of the Compensation Commissioner on various grounds, primarily that the respondent/ applicant-Shri.V.S.Prasad is not her employee and that they have had no employer-employee relationship at any point of time. The appellant asserts that even though Shri.V.S.Prasad(hereinafter referred to as the applicant for short) has not been able to establish that he is the employee of M/s.Marymatha Timbers, the Compensation Commissioner has awarded him Rs.18,000/- as half monthly pay and Rs.13,128/- as medical expenses with respect to an alleged accident he had suffered at the Timber Unit/Saw Mill. The appellant vehemently ## **MFA No.42 OF 2019 3** asserts that the impugned Award is untenable, because Shri.V.S.Prasad was not her employee and therefore, could not have maintained the claim before the Compensation Commissioner. 3. In response, Shri.V.S.Prasad - the applicant before the Compensation Commissioner-submits that he had been employed by M/s.Marymatha Timbers on the date on which he met with an accident in the Timber Unit/Saw Mill and therefore, that he had issued Exts.A2 and A4 notices to the appellant, which was accepted by her, as is evident from Exts.A3 and A5 acknowledgments, but had still refused to accede to the justifiable demand made by him. He says that he had, therefore, no other option but to approach the Compensation Commissioner and to seek compensation as per the provisions of the Employees Compensation Act. **==> picture [319 x 12] intentionally omitted <==** **MFA No.42 OF 2019 4** learned counsel appearing for the appellant and Shri.Manu Govind, learned counsel appearing on behalf of the respondent. 5. Shri.Prabhu K.N., learned counsel for the appellant, began his submissions by saying that evidence on record would clearly establish that his client was not involved with the Timber Unit/Saw Mill on 02/07/2011, when the respondent is alleged to have met with an accident. He says that Ext.M1 agreement, which his client had entered into with certain Shri.Joju, S/o.Porinchu, would ineluctably establish that the Unit was, at that time, in the possession and control of the latter and that the applicant Shri.V.S.Prasad may have been engaged by him. Shri.Prabhu K.N. submits that, in fact, the applicant himself had impleaded the afore mentioned Shri.Joju as an additional respondent before the Compensation Commissioner but had thereafter deleted him from the party **MFA No.42 OF 2019 5** array, which establishes without doubt that his client was not in any manner involved with the activities of the Unit or to have employed Shri.V.S.Prasad, even if his assertions regarding the accident are true. 6. Shri.Prabhu K.N. then relies on the judgment of this Court in _**Arukandi**_ ## _**Kishakkedath Vasudevan v. Nallakandi**_ ## _**Arukandi Hyma Vasudevan & Others [2011 (3)**_ _**KHC 770]**_ to contend that before striking off a respondent from the party array, sufficient reasons ought to have been stated by the Compensation Commissioner and that thus, the proceedings of the said Authority are completely vitiated, since Shri.Joju had been deleted from the array on the application of the applicant – Shri.V.S.Prasad without following due procedure. He submits that, in any event of the matter, since the applicant claims that he was employed under his client, it was up to him to establish it, particularly when **MFA No.42 OF 2019 6** his client had specifically contended that there was no employer-employee relationship between the parties. He, therefore, prays that the impugned order of the Compensation Commissioner be set aside and this Appeal be allowed. 7. In response, Shri.Manu Govind, learned counsel for the respondent in this appeal submitted that Ext.M1 is not a valid document, being one created by the appellant solely for the purpose of wriggling out of his obligations under the Employees Compensation Act. He says that the evidence on record makes it indubitable that his client had been engaged by the appellant a year before the accident on 02/07/2011 and that the case now put up by her-that she had entrusted the Timber Unit/Saw Mill to Shri.Joju - was impelled only at the time when the pleadings were filed before the Compensation Commissioner. He says that the original claim made by his ## **MFA No.42 OF 2019 7** client before the Commissioner did not contain the name of Shri.Joju, since his specific case is that he is working under the appellant herein; but that when counter pleadings were filed by her to the effect that the Unit had been handed over to Shri.Joju, he was brought on record, by way of abundant caution, but was then deleted, since he is not a necessary party to these proceedings because the consequences flowing out of the accident are only on the appellant and no one else, she being the owner of the business and his client having been engaged by her. He then adds that the accident suffered by his client has been established through medical evidence, including the Medical Certificates which have been marked by the Compensation Commissioner as Exts.A6 and A7 and therefore, that the amount now ordered commensurate to the injury and can, by no stretch of imagination, be seen to be ## **MFA No.42 OF 2019 8** excessive or disproportionate. He thus prays that this appeal be dismissed. 8. I have examined the afore submissions and have also carefully evaluated the evidence available, which includes Exts.A1 to A7 produced on behalf of the applicant and Ext.M1 produced by the appellant herein, as also the testimony of AW1, who is the applicant and MW1, who is the appellant. 9. When one examines the materials on record, it is without doubt that Exts.A2 and A4 notices had been issued by the applicant to the appellant herein and that they were accepted by the Manager of the Unit, as is evident from Exts.A3 and A5. In fact, I do not have to labour much on this issue because this is expressly conceded to by Shri.Prabhu K.N., learned counsel for the appellant, but he says that mere acceptance of Exts.A2 and A4 will not show that the applicant was his client's ## **MFA No.42 OF 2019 9** employee. 10. Even when I hear Shri.Prabhu K.N. on the afore lines, it is impossible that the appellant would have accepted Exts.A2 and A4 and cause no reply to the same at all if the applicant was not her employee. The notices clearly show that the applicant claims to be an employee of the appellant and the claim made by him is also based on such status and no other. Obviously, therefore, had the appellant been in honest in her approach, she certainly would have replied to the same, asserting that she is not the applicant's employer and that she is not liable for any damages. 11. That said, when one examines the validity of Ext.M1 document, which is stated to have been executed between the appellant and the afore mentioned Mr.Joju, it is worded as a 'rent agreement' though Shri.Prabhu K.N. asserts that it is only a 'licence agreement'. He has tried to ## **MFA No.42 OF 2019 10** contend, by relying upon various authorities and precedents, that in the nature of the contents of Ext.M1, it is only a 'licence agreement' and therefore, that even if it is stated to be a “rent agreement', this Court must construe it to be only a licence agreement. I am afraid that I cannot countenance these submissions at all, because Ext.M1 has been executed on a Rs.50/- non judicial stamp paper, stating that a portion of the Timber Unit/Saw Mill has been given on rent to the afore mentioned Shri.Joju for a period of two years. Further, even if Shri.Joju had been removed from the party array by the applicant, nothing prevented the appellant from calling or examining him as a witness on her side, so as to prove the said document and its contents. 12. Ineluctably, therefore, the forensic validity of Ext.M1 is certainly under a cloud and I cannot find fault with ## **MFA No.42 OF 2019 11** the Compensation Commissioner in having concluded that it is a document created solely for the purpose of avoiding the statutory obligations by the appellant. This becomes more pronounced when one examines the evidence of Ext.MW1, wherein, she concedes that the business was being run by her; that she was being assisted by her husband and that the person, who signed Exts.A3 and A5 acknowledgments, is her Manager. Her evidence is deceptive, to say the least, with respect to the manner in which the Timber Unit/Saw Mill was being run and no-where does she say that Shri.Joju had been given full autonomy to run the same or to engage his own employees. 13. Therefore, merely because the appellant denies the employer-employee relationship between her and the applicant, the very fact that the applicant, was injured at her Timber Unit/Saw Mill on ## **MFA No.42 OF 2019 12** 02/07/2011 and which is evident from Exts. A6 and A7 Medical Certificate and bills, makes it irrefutable that she was running the Unit and that the relationship that she claims with Shri.Joju is only facade to wriggle out of the statutory obligations cast upon her under the Employees Compensation Act. 14. In the afore secnerio, the mere fact that Shri.Joju had been initially impleaded by the applicant and then deleted, would be of no consequence at all, because, as stated above, if the appellant wanted to examine him as a witness to prove Ext.M1, she could have done so by calling him as a witness or she could have at least called the witnesses shown in the said document for such purpose. The fact that she did neither of these would clearly go against her and I have no doubt in my mind that the Compensation Commissioner was completely without error in having issued ## **MFA No.42 OF 2019 13** the impugned order. 15. That said, the only other surviving question is whether the compensation now awarded by the learned Commissioner is as per law. Pertinently, there is no challenge in this appeal against the quantum awarded by the Compensation Commissioner, presumably because the thrust of the arguments of Shri.Prabhu K.N., on behalf of the appellant, is that there is no employer employee relationship between the parties. However, since I have found that this relationship is now implicit from the records and materials available, the compensation ordered by the Commissioner also appears to be within the parameters as per law and wholly commensurate to the nature of the injuries, as is evident from Exts.A6 and A7 Medical Certificate and bills. In summation this appeal is liable to ## **MFA No.42 OF 2019 14** be dismissed and axiomatically the respondent would normally be entitled to the costs for these proceedings. However, when my mind as afore was disclosed at the Bar, Shri.Prabhu K.N., learned counsel for the appellant, submitted that his client has already pre-deposited the amounts under the Award, as is statutorily mandated, and that no costs may be imposed against her, particularly because she will not oppose the withdrawal of the amounts by the respondent from the Compensation Commissioner. Resultantly, this appeal is dismissed without any order as to costs and the respondent/applicant is at liberty to apply for withdrawal of the amounts deposited by the appellant before the Compensation Commissioner forthwith. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/13.1.2020**