MFA(WCC) No.126 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** ## **MFA(WCC)No. 126 of 2014** **AGAINST THE ORDER IN WCC 3/2007 OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER),ERNAKULAM** **APPELLANTS/OPPOSITE PARTIES 1, 2 & 5 IN W.C.C.:** - **1 THE CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** **2 THE ASSISTANT EXECUTIVE ENGINEER ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, MUVATTUPUZHA-686661.** - **3 THE SECRETARY** **KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.** **BY ADVS.** **SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB SRI.K.P.ASHOK KUMAR, SC, KSEB** MFA (WCC) No.126/2014 ## **-:2:-** ## **RESPONDENTS/APPLICANTS & OPPOSITE PARTIES 3 & 4 IN W.C.C.:** **1 K.P.ALDON @ ELDHOSE S/O.LATE PAILY, KUNNUMPURATH HOUSE, VARAPETTY P.O., KOTHAMANGALAM-686691. 2 MARY ELDHOSE W/O.ELDHOSE, KUNNUMPURATH HOUSE, VARAPETTY P.O., KOTHAMANGALAM-686691. 3 BINCY DONY W/O.LATE DONY ELDHOSE, KUNNUMPURATH HOUSE, VARAPETTY P.O., KOTHAMANGALAM-686691. 4 DONA DONY D/O.LATE DONY ELDHOSE, KUNNUMPURATH HOUSE, VARAPETTY P.O., KOTHAMANGALAM-686691. 5 JOY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, POTHANIKAD-686671. 6 SAJI PAUL THE SUB ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, POTHANIKAD-686671.** **BY ADVS. C.ARUN PRASANTH SRI.BAIJU JOHN SRI.JOHN VARGHESE(THOPPIL)** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2017, THE COURT ON 27.02.2019 DELIVERED THE FOLLOWING:** **-:3:-** MFA (WCC) No.126/2014 ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. ---------------------------------------------------------** ## **M.F.A(WCC) No.126 of 2014** **---------------------------------------------------** Dated this the 27[th] day of February , 2019 ## **JUDGMENT** ## **MARY JOSEPH, J.** The appellants herein are the opposite parties 1, 2 and 5 in W.C.C.No.3 of 2007 before the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Ernakulam (for short 'the Commissioner') and respondents 1 to 4 herein are the applicants therein. A petition was filed by the dependents of one Sri.Dony seeking compensation for his death, which they claimed to have been occurred in the course of his employment under the Kerala State Electricity Board (for short 'the Board'). 2. The brief facts relevant for the disposal of this appeal are summarised hereinbelow:- Sri.Dony Eldose @ Dony was a worker employed by the Chief Engineer, Kerala State Electricity Board, Vaidyuthi Bhavan, MFA (WCC) No.126/2014 **-:4:-** Thiruvananthapuram for doing the maintenance work of 11KV electric line of the Board, Pothanikadu Division on contract basis, since 1999. 3. On 2.1.2006, there was AB switch maintenance work in the 11 KV line near Limra Soap Factory at Kothamangalam within the territory of Pothanikadu Section of the Board. Mr.Dony along with his superiors and other staff reached at the site in the jeep driven by him. The maintenance was started. Due to some problem in the maintenance work, the Sub Engineer of the the Board directed him to do the AB switch maintenance work in the 11 KV line. While being engaged so, Mr.Dony got electric shock from 11 KV line. He was rushed to Baselious Hospital, Kothamangalam, but died at 11.35 a.m. on the same day. Postmortem examination of his body was conducted at Medical College Hospital, Alappuzha. Mr.Dony was aged 25 years at the relevant time and was getting ` 6500/- as wages. An application seeking compensation was filed by his dependents under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred MFA (WCC) No.126/2014 ## **-:5:-** to as 'the Act' for short). 4. First, second and fifth opposite parties filed written statement jointly raising the contentions that on 2.1.2006, Mr.Dony was not engaged by the Board for doing the maintenance work under the Electrical Section, Pothanikadu, that he was engaged only as driver of the jeep owned by one Mr.K.M.Eldose, that the said jeep was driven by Mr.Dony to the Electrical Section, Pothanikadu on the alleged day on contract basis for transporting workers and materials, that the maintenance work of AB switch was done on 2.1.2006 by engaging electricity workers and other field staff of Sub Engineer, Electrical Section of the Board at Pothanikadu, that the maintenance work of AB switch being a skilled work, it cannot be carried out by Mr.Dony, that employeremployee relationship as contemplated by the provisions of the Act was not existing among Mr.Dony and opposite parties, that the accident occurred when Mr.Dony climbed over the O.P. structure in negation of the warning of the Sub Engineer, Electrical Section and that in the attendant circumstances, neither the Board nor its MFA (WCC) No.126/2014 ## **-:6:-** officials are responsible for the accident and being unnecessary parties, they cannot be saddled with liability to pay any compensation to the dependents of deceased Dony. 5. The fourth opposite party filed a separate written statement raising contentions that Mr.Dony was a driver of the vehicle hired by the Board from one Mr.Eldhose on contract basis, that he being the owner of the vehicle is a necessary party to the petition seeking compensation, that Pothanikadu Section of the Board had never engaged Mr.Dony for doing any maintenance work at their site, that he was paid with wages directly by the owner of the vehicle, that the statement of the petitioners that Mr.Dony being an experienced worker, was engaged by the Board to do several maintenance works is devoid of any basis, that he was not directed by any of the officials of the Board on the fateful day to do the maintenance work in the 11 KV line and that he was electrocuted upon climbing the poles on his own volition in a negligent and careless manner to get involved in the work done by other workers and that, therefore, neither the Board nor any of its MFA (WCC) No.126/2014 **-:7:-** officials are responsible for his death and for payment of compensation to his dependents for loss caused by his death. 6. The case was tried by the Commissioner. The third opposite party, who is none other than wife of late Dony was examined as AW1, his father as AW2 and the Assistant Engineer of the Board, Palakuzhi as AW3. Exts.A1 to A8 were marked on the petitioner's side. The Sub Engineer, Electric Section, Pothanikadu Section of the Board was examined as DW1 and another witness as DW2. 7. The Commissioner was called upon to consider the issues as to the existence of employer-employee relationship between the deceased and the Board, whether the incident whereby fatal injuries, were suffered by the victim which led to his death had arisen out of his employment or was caused in the course of his employment with the Board, the quantum of compensation to which he is entitled to and who shall be fastened with liability to pay the compensation. 8. After hearing both parties and upon perusing the oral as MFA (WCC) No.126/2014 **-:8:-** well as documentary evidence, the Commissioner answered all issues in favour of the petitioners and accordingly, the petition seeking compensation was allowed. The Commissioner found the petitioners, being legal heirs of deceased Dony entitled to get compensation, computed as Rs.4,36,940/- together with interest @ 12% per annum from 2.1.2006, the date of occurrence till the date on which deposit is made and the Secretary of the Board, Vydhyuthi Bhavan, Thirvuananthapuram was directed to deposit the same within 30 days from the date of receipt of the order. A further direction was also issued that on failure to deposit the amount within the time stipulated, revenue recovery steps shall be initiated for getting the same recovered and paid to the petitioners. 9. Aggrieved by the said order the opposite parties 1,2 and 5 have preferred this appeal. 10. The grounds projected in the appeal memorandum were as follows:- - i. Evidence to establish employer-employee relationship of the Board and the deceased so as to make the former MFA (WCC) No.126/2014 ## **-:9:-** liable to pay compensation to the dependents of the latter and the finding of the Commissioner that such a relationship was existing, totally based on improper appreciation of the evidence on record. ii. Negligence was not there either on the part of the Board or its officials and therefore, the Tribunal is erred in finding them responsible for the incident and mulcting them with liability to compensate the petitioners. iii. Ample evidence was let in by the opposite parties before the Commissioner to negate their liability to compensate petitioners and it ought to have discarded the claim of the petitioners on its basis. But, the Commissioner failed to appreciate the same in proper manner and thereby entitlement of the petitioners for compensation was arrived at on a clear misconception of it. iv. The name of the deceased though do not find a place in MFA (WCC) No.126/2014 ## **-:10:-** Ext.A6, the list of contractors maintained by the Board, Pothanikadu Section, the Commissioner erroneously concluded that the deceased was an employee under it at the relevant time of incident. - v. The Commissioner has also gone wrong while appreciating of evidence of DW1 and AW3, to arrive at a finding that Mr.Dony was an employee of the Board. - vi. There is total want of materials before the Commissioner to support the claim of the petitioners that Mr.Dony was engaged in maintenance work of the 11 KV line on the crucial day, but it found in favour of the petitioners purely based on their plea in that regard. - vii. The income of Mr.Dony was taken on the higher side by the Commissioner for computing the compensation and accordingly, excessive compensation was arrived at. 11. Sri.K.P.Ashok Kumar, the learned Standing Counsel for the Board strenuously canvassed for a reversal of the order under MFA (WCC) No.126/2014 ## **-:11:-** challenge in duly considering the aforementioned grounds. On the contrary, Sri.John Varghese (Thoppil), the learned counsel thrived hard to sustain the contention that the Commissioner has correctly and justifiably arrived at the finding regarding entitlement of compensation by the petitioner and that the grounds projected by the opposite parties are totally devoid of any merits and basis. According to him, the court below has correctly found the status of the deceased at the relevant time of his death as an worker under the Board and entitlement of the petitioners in their capacity as his dependents, for compensation from the Board on the strength of valid pieces of evidence available on record and therefore, interference with the impugned order is strictly uncalled for. 12. In the backdrop of the rival contentions projected so, we have ventured to evaluate the evidence on record to see whether any of the contentions advanced by the learned counsel for the appellants would sustain. 13. The rival contentions put forth invite us firstly to see MFA (WCC) No.126/2014 **-:12:-** whether satisfactory evidence is available to justify the finding of the court below regarding the status of Mr.Dony Eldose as a worker of the Board and that the electrocution that resulted in his death was occurred during the course of his engagement so. An anxious look at the oral evidence of AW1 would expose it to us that her husband Dony was a Contractor of the Board since 1999, that on 2.1.2006 he died due to electrocution while engaged in the maintenance work of 11 KV line in the Electrical Section of the Pothanikadu Division of the Board and also that her husband had gone to the site of maintenance on the fateful day as instructed over phone by the Sub Engineer, Electrical Section, Pothanikadu Section of the Board to drive a jeep hired by it on contract basis. 14. AW2, the father of the deceased had spoken in clear corroboration with that of AW1. He deposed that his son was a contract worker and driver of the Board on daily wages, that on 02.01.2006 at 7 a.m., he went to the Electrical Division of Pothanikadu Section after receiving a phone call from the Sub Engineer of the Board, the fourth opposite party and his son died MFA (WCC) No.126/2014 **-:13:-** at Baselious Hospital, Kothamangalam following electrocution from 11 KV line on the day while being engaged in the maintenance works therein. The version of Assistant Engineer of the Board, Alappuzha who was summoned and examined as AW3, based on Ext.A8, the list of petty contractors in the Electrical Major Section, Pothanikadu during the period from 1998 was that Mr.Dony was engaged as a jeep driver of the vehicle hired by the Board on the fateful day and was not directed to do any maintenance work by them. The version of Sub Engineer, the fourth opposite party when examined as DW1 was that the deceased happened to be available at the work site as driver of the jeep hired by the Board from one Mr.Eldhose, it's contractor. When confronted based on Ext.A8, the list of petty contractors and workers engaged by the Board, he pleaded ignorance about it, but was adamant on his stand that Mr.Dony was not instructed by him to do the maintenance work of AB switch in the 11 KV line. 15. Mr.Eldhose K.M., the owner of the jeep as DW2 has deposed in categoric terms that Mr.Dony was engaged to drive the MFA (WCC) No.126/2014 ## **-:14:-** jeep bearing Registration No.KL-7/W 598, hired by the Board from him on contract basis and the factum of his electrocution from the 11 KV electric line of Pothanikad Electrical Section of the Board while being engaged in the work was informed to him. According to him, Mr.Dony was the driver of a jeep bearing Reg. No.KL-7/W 598, which was taken on contract basis by the Board and was paid by him. Admittedly, Mr.Dony had occasional engagements with the Board for doing maintenance works. His version regarding the involvement being hearsay, is irrelevant. But his version regarding the engagement of Mr.Dony as a driver of the jeep hired by the Board is relevant in the context. 16. The version of the Assistant Engineer of the Board, Alappuzha, who was summoned and examined as AW3 on the basis of Ext.A8 was that Mr.Dony was present at the work site as a driver of the vehicle hired by the Board and not for doing any maintenance work as requisitioned to do by the Board. According to him, since the engagement of Mr.Dony as a driver on the fateful day was on contract basis, employer-employee relationship does **-:15:-** MFA (WCC) No.126/2014 not exist among him and the Board. 17. Ext.A1 is the FIR registered following the accident. The first informant was one Mr.Vinod who was a worker engaged by the Board to do the maintenance work in the Electrical Section, Pothanikadu on 02.01.2006. It was the statement recorded from him on 02.01.2006 that Mr.Dony died on the day due to electrical shock while being engaged in electrical maintenance work along with him, which formed the basis for registration of Ext.A1. The opinion of the Forensic Surgeon based on the postmortem examination was that the death of Mr.Dony was due to electrocution. The report of the Deputy Chief Electrical Inspector marked in evidence as Ext.P5 would expose that the deceased had considerable experience as a line worker with the Board on contract basis. It is also worthy to note from Ext.P5 that Dony died following an electric shock from the 11 KV line while attending the maintenance work there alongwith Sri.Vinod, the first informant. 18. It can safely be concluded from the versions of the MFA (WCC) No.126/2014 **-:16:-** official witnesses that the deceased was available at the worksite as driver of the jeep bearing Reg. No.KL-7/W 598 hired by the Board from one Mr.Eldhose, who is none other than a contractor under them. Despite the confrontations by the respondents from several angles, the factum remains uncontroverted that Mr.Dony received electric shock from the 11 KV line where maintenance work was carried out by the Board on 02.01.2006 and died on the day itself consequent to the electrocution. The factum of earlier frequent engagements of Mr.Dony at the work sites of different Divisions of the Board in connection with maintenance also remained uncontroverted. 19. The fact that the deceased was engaged as a driver on contract basis on the fateful day for transportation of the workers and staff of the Board to the site of maintenance, which turned the spot of incident later is not under dispute. The main thrust of challenge was on the existence of the employer-employee relationship between Mr.Dony and the Board, which according to the latter is a negative factum, but affirmative as far as the MFA (WCC) No.126/2014 **-:17:-** claimants are concerned. Absolutely no challenge is there regarding the engagement of Mr.Dony at the work site on 02.01.2006 as driver and his presence at the site of maintenance. The question for consideration in the context is whether he was at the worksite during the course of his employment as driver engaged by the Board. The specific case of AW1 and AW2 was that Mr.Dony was called for driving the jeep hired by the fourth opposite party, who is none other than the Sub Engineer of the Board for transportation of workers and materials to the site and the version of the officials as well as that of the owner of the vehicle, one Mr.K.M.Eldhose was that the deceased was engaged to drive the jeep hired by the Board, from him. 20. An overall analysis of the oral evidence tendered by the opposite parties would disclose that the engagement of Mr.Dony on the fateful day was, as driver of the jeep for transporting officials of the Board and its employees to the spot of maintenance work. It is further revealed that Mr.Dony died at the spot due to electric shock from 11 KV line. DW2 was the owner of the jeep MFA (WCC) No.126/2014 **-:18:-** sought to be driven by Mr.Dony. Neither of the parties have a case that Mr.Dony died in a motor accident involving the vehicle driven by him and during the course of driving so. The version of Mr.Vinod, a worker engaged in maintenance work at the spot was that Mr.Dony was electrocuted while attending the maintenance work at 11 KV line. 21. Death consequent to electrocution from 11 KV line is a factum undisputed even by the officials of the Board. Then the question remains for consideration is whether he was authorised by the Board to do the maintenance work in the 11 KV line. Positive evidence is not forthcoming in that respect. But it is pertinent to note that none of the opposite parties, who tendered evidence, have a case that Mr.Dony attended the maintenance work on his own volition or against their warning. From the evidence, it is clear that Mr.Dony was not a total stranger to the Board. The witnesses have spoken about previous engagements of Mr.Dony by the Board in their maintenance works. It is true, on the fateful day Mr.Dony being not engaged for maintenance work, **-:19:-** MFA (WCC) No.126/2014 but only to work with the Board as a driver, he was a total stranger to the Board as far as engagement of worker for the maintenance of 11 KV line is considered. But, his presence at the site as a driver is well established. As revealed from the evidence, Mr.Dony had the skill to do the maintenance work and had previous engagements in works of similar nature. He was familiar to the officials of the Board also. Even according to Mr.Vinod, a worker engaged by the Board for doing the maintenance work of 11 KV line for the day, Mr.Dony sustained electrocution on 2.01.2006 while doing the work together with them. He has never given a version that Mr.Dony climbed the post on his own volition and attended the work there. He has no case that he climbed the post against restraint from the officials of the Board present at the worksite. What follows from the conduct of the officials who remained silent for the day was that implied consent of them was there for Mr.Dony to mount the post to do the maintenance works of 11 KV line. 22. The first information regarding the incident was also **-:20:-** MFA (WCC) No.126/2014 tendered by Mr.Vinod, whose association with the Board as its worker and engagement in the maintenance work at the 11 KV line on 02.01.2006 is not disputed by the officials. They have not even raised any challenge against Ext.A1, the FIR registered on the basis of his first information statement. The version of Mr.Vinod, being the first version tendered after the incident in his capacity as a worker of the Board without any delay cannot be viewed as tainted with concoctions or embellishments. The independence of the said version was not even attempted to be challenged by the opposite party. Therefore the claim of the petitioners that Mr.Dony got electrocuted from the 11 KV line while attending the maintenance work of the Board is well strengthened. 23. None of the Board officials examined before the court below has raised any dispute with regard to the previous engagements of Mr.Dony by the Board in the maintenance works in the electric section. They have not raised a dispute regarding the electrocution of Mr.Dony on 02.01.2006 from the 11 KV line where maintenance work was in progress. The fourth opposite MFA (WCC) No.126/2014 **-:21:-** party has also no case contrary to that of the claimants regarding the instructions over phone to Mr.Dony to undertake the work as a driver of the Board. Therefore, nothing stands in the way to conclude that Mr.Dony was available at the site of maintenance work as a driver engaged by the Board. From the oral evidence of Dw1 and the documentary evidence tendered by the claimants as Exts.A6 and A7, it is evidenced that Mr.Dony was a member of the Union of workers of the Board and his name finds a place in the list of contract line workers maintained by the Board. Since the opposite parties have no case that the deceased climbed the electric line on his own volition and against their warning, it could safely be concluded that the deceased had undertaken the maintenance work with their permission or rather as requisitioned by DW1, for himself having been evidenced as engaged by the Board to attend its maintenance work as a contract line worker on previous occasions. His electrocution and the death, not being consequent to an incident with the use of the vehicle driven by him at the relevant time, the contention of the Board to exempt them **-:22:-** MFA (WCC) No.126/2014 from the liability to compensate the petitioner, is totally unsustainable. 24. Since Mr.Dony was evidenced as available at the maintenance worksite of the Board as a driver engaged by DW1 and his death, evidenced as resulted from the electric shock received by him from 11 KV line while attending the maintenance work therein, it is highly unjust on the part of the Board to evade its liability to compensate the petitioner for his death. Without there being a direction from DW1, Mr.Dony would not have mounted the 11 KV line and attended the maintenance work, which involves specific skill and experience. 25. Evidence on record amply supports the claim of the petitioners that Mr.Dony had attended the maintenance work as engaged by the Board and the cause of his death was the electric shock received from the 11 KV line during the course of his employment. The Board cannot evade its responsibility by projecting unsustainable reasons. The court below has found the petitioners eligible to receive the quantum of compensation arrived **-:23:-** MFA (WCC) No.126/2014 at, against which the opposite parties have not raised any specific challenge and therefore interference is strictly uncalled for. The challenge in particular was against mulcting of liability upon them to compensate the petitioners, which having been concluded affirmatively by the discussion hereinabove made, is also maintained. In the outcome, the appeal fails and is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** **Sd/-** **MARY JOSEPH JUDGE** MBS/ /True Copy/ PS to Judge