MFA.(WCC) No.178 of 2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938 MFA.(WCC)No. 178 of 2007 ( ) -----------------------AGAINST THE ORDER IN WCC 246/2002 of THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, THRISSUR DATED 05-03-2007 APPELLANT/SECOND OPPOSITE PARTY: ------------------------------------------ THE NATIONAL INSURANCE COMPANY LTD., PALAKKAD BRANCH, PALAKKAD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/APPLICANT & OPPOSITE PARTIES ONE & THREE: ---------------------------------------------------------------------- 1. VIJAYAN, S/O.PONNAN, KANNAMKULAMB LAKSHAM VEEDU, POST NENMINI (VIA), KOLLENGODU, PALAKKAD DISTRICT. 2. THE SECRETARY, KOLLENGODE PATTIKAJATHI CO-OPERATIVE SOCIETY, LTD.NO.P 844, KOLLANGODU, PALAKKAD, DISTRICT. ## 3. CHIEF EXECUTIVE, KERALA HEAD LOAD WORKERS WELFARE FUND BOARD, ERNAKULAM. R1 BY ADV. SRI.P.V.BABY R3 BY ADV. SRI.KOSHY GEORGE THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.F.A.(WCC) No.178 of 2007 -------------------------------Dated 27[th] June, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the order dated 5.3.2007 of the Commissioner for Workmen's Compensation, Thrissur in W.C.C.No.246 of 2002. The said application was filed under Section 22 of the Workmen's Compensation Act, 1923 (for short `the Act') by the first respondent herein. He filed the same alleging that he met with an accident which arose out of and in the course of employment under the first opposite party therein viz., the 2[nd] respondent herein while working as headload worker in a Tractor bearing Registration No.KL 9/J 3952 owned and operated by the said society. The aforesaid vehicle admittedly stands insured with the 2[nd] opposite party, the appellant herein. In the accident he sustained comminuted fracture on the head of right radius. He was then aged 38 years and was earning a monthly wage of 4,500/-. It is also contended that no separate notice₹ regarding the accident was issued to the opposite parties as the said society got direct knowledge with respect to the accident. A sum of ₹ 4,54,944/- was claimed as compensation together with interest. The M.F.A.(WCC)No.178/2007 2 impugned order was passed thereon by the Commissioner holding that the appellant herein is liable to indemnify the said society to pay compensation. An amount of ₹ 1,31,365/was granted as compensation. The said amount was ordered to carry interest at the rate of 12% per annum from 25.1.2002 till the amount is deposited or recovered. It is feeling aggrieved and dissatisfied with the aforesaid order that the insurer of the above mentioned vehicle filed the captioned appeal. 2. We have heard the learned counsel for the appellant, the learned counsel appearing for the first respondent and also the learned counsel appearing for the 3[rd] respondent, Kerala Headload Workers Welfare Fund Board. Though notice was issued in this proceedings to the 2[nd] respondent society and despite the receipt of notice they have not chosen to enter appearance and contest the matter. For the sake of convenience the parties are referred to hereinafter in this judgment in accordance with their status in this appeal. 3. From the rival contentions raised before us it is evident that the appellant relies on a factual question which was not in fact considered or decided by the Commissioner. There are several crucial M.F.A.(WCC)No.178/2007 3 questions to be answered in this case. To establish that the first respondent has sustained injuries on 25.1.2002 he has produced Ext.A2 discharge card before the Commissioner. Dr.S.S.Subramanian was examined as AW1 on behalf of the first respondent solely for the purpose of proving the extent of permanent disability incurred by him in the accident. Evidence on record and the discussion made thereon by the Commissioner would undoubtedly reveal the fact that the crucial question, who was the employer of the first respondent on 25.1.2002 and the date of alleged accident, was not at all discussed or decided by the Commissioner. We are constrained to make such an observation taking into account the fact that the first respondent was then admittedly, holding an identity card issued by the Headload Workers' Welfare Fund Board viz., Ext.A3. Going by the same, he was then a pool worker and his area of work was Mannampallam unit. The consistent case of the 3[rd] respondent viz., Headload Workers' Welfare Fund Board, even while admitting the issuance of Ext.A3 in the name of first respondent, is that the first respondent had not signed in the register kept by the concerned officer attached to the 3[rd] respondent from 23.1.2002 onwards. In short, their case is that the accident had not occurred when the first respondent stood allotted to any particular employer attached to the 3[rd] respondent. As noticed hereinbefore, the M.F.A.(WCC)No.178/2007 4 2[nd] respondent had not chosen to enter appearance and to contest the matter in this proceedings. Going by the written statement filed by the 2[nd] respondent before the Commissioner, on 25.1.2002 the first respondent was engaged by the society. It is to be noted that the very case pleaded by the first respondent in the application is that he sustained injuries while unloading granites from the Tractor bearing Reg.No.KL 9/J 3952 belonged to the 2[nd] respondent. As noticed hereinbefore, the fact that the first respondent was engaged on that day was virtually admitted by the 2[nd] respondent. In such circumstances, normally we would not have proceeded further to sustain the finding of the Commissioner that the applicant was a workman as defined under Section 2(1)(n) of the Act and there was an existing employee - employer relationship between the first respondent and the 2[nd] respondent on the date of the accident. But, at the same time, it is to be noted that the findings entered into by the Commissioner as against issue Nos.1 and 2 would reveal that on appreciation of the evidence the Commissioner arrived at a conclusion that the applicant was a workman as defined under Section 2(1)(n) of the Act and there existed an employee - employer relationship between respondents 1 and 2 and that the accident arose out of and in the course of his employment. At the same time, the findings as against M.F.A.(WCC)No.178/2007 5 issue No.4 would reveal that the Commissioner took note of the fact that Ext.A3 identity card was issued to the first respondent by the 3[rd] respondent. In other words, it is evident from the findings as against issue No.4 that the fact that the first respondent was a pool worker attached to the 3[rd] respondent Board was also within the knowledge of the Commissioner, as revealed from the records. When those aspects were before the Commissioner we are of the view that to saddle the appellant herein with the liability to indemnify the 2[nd] respondent the mere admission of engagement of the first respondent by the 2[nd] respondent was not sufficient especially in the light of the evidence on record to the effect that the first respondent was then a pool worker attached to the 3[rd] respondent. In short, according to us, a pointed question ought to have been framed and decided whether in spite of the fact that the first respondent is a pool worker attached to the 3[rd] respondent he could have been treated as an employee of the 2[nd] respondent on 25.1.2002 and whether by virtue of such engagement on that day (if he was actually engaged) he would fall under the definition of `workman' under Section 2(1)(n) of the Act and whether an employee - employer relationship existed between the first and second respondents so as to fasten the liability on the appellant herein to indemnify the 2[nd] respondent in the matter of payment of compensation. M.F.A.(WCC)No.178/2007 6 4. A careful scanning of the contentions raised by the learned counsel appearing for the appellant would reveal that he challenges the findings of the Commissioner on certain aspects. The finding is to the effect that the first respondent was a workman as defined under Section 2(1)(n) of the Act and there existed an employee - employer relationship between the first and second respondents. Evidently, the learned counsel for the appellant further contended that the first respondent had failed to adduce any evidence to show that an accident occurred on 25.1.2002 while he was engaged for the head load work of the 2[nd] respondent at the alleged place of occurrence. It is submitted that apart from the discharge card wherein such a reference was made about the accident occurred on 25.1.2002 no evidence whatsoever was adduced to establish that the accident arose out of and in the course of his employment. The learned counsel further submitted that there is nothing on record which would reveal that the accident had occurred at the aforesaid place of occurrence and that the said incident was duly reported to the appellant and also a crime was registered in connection with the accident. In short, the contention is that there is absolute absence of any evidence other than Ext.A2 disability card to suggest that the first respondent met with an M.F.A.(WCC)No.178/2007 7 accident on 25.1.2002 while being engaged by the 2[nd] respondent as a headload worker. It is the contention of the learned counsel that even if the accident occurred, it is the onus of the first respondent to establish that the accident has some nexus with the insured vehicle so as to fasten liability on the appellant company to indemnify the 2[nd] respondent. Apart from Ext.A2 discharge card no evidence which would establish that such an accident occurred on 25.1.2002 when the first respondent was being engaged as a headload worker by the 2[nd] respondent was produced. In the contextual situation, it is also relevant to take note of the stand taken by the 3[rd] respondent. The 3[rd] respondent specifically admitted the fact that it issued Ext.A3 identity card and allotted the first respondent as a headload worker to Mannampallam unit. Thus, it is obvious that the first respondent is a headload worker registered with the 3[rd] respondent and his place of work is Mannampallam. That apart, the 3[rd] respondent specifically stated in its written statement filed before the Commissioner that the first respondent had not signed on its record from 22.1.2002 onwards. Taking into account all such circumstances, we are of the view that a detailed consideration regarding the question whether the accident allegedly occurred on 25.1.2002, if at all it is proved, would take the first respondent within the purview of the definition of `workman' under M.F.A.(WCC)No.178/2007 8 Section 2(1)(n) of the Act and further whether it could be said that there existed an employee - employer relationship between the first and second respondents on that day so as to ultimately fasten the liability on the appellant to indemnify the second respondent. Needless to say that even in a case where the concerned insured establishes that he was a workman and there existed an employee - employer relationship with another party before the Commissioner he can succeed in a claim petition only if he succeeds in establishing that the accident in question arose out of and in the course of employment. In other words, only on establishing such cumulative factors an applicant would be entitled to get compensation in an application under Section 22 of the Act. It is the submission of the learned counsel for the first respondent that Ext.A2 discharge card would reveal that the first respondent had sustained comminuted fracture on the head of his right radius. He would further submit that Ext.A1 disability certificate with the evidence of AW1 would reveal that in the accident the first respondent incurred permanent disability to the tune of 17%. In such circumstances, it is contended that taking note of the fact that the provision for granting compensation under the Workmen's Compensation Act is a welfare legislation it will only be in the interest of justice to permit the first respondent to adduce evidence in support of M.F.A.(WCC)No.178/2007 9 his contention that he was a workman of the 2[nd] respondent on 25.1.2002 and that there existed an employee - employer relationship between them and that the accident arose out of and in the course of such employment. As noticed hereinbefore, the 3[rd] respondent specifically denied of allotment of any work to the first respondent on that day by its convenor in accordance with the provisions of the said Act. Besides the factual aspects expatiated above we are of the view that the decision of a Division Bench of this Court in **Head Load Workers Welfare Board** v. **Moidutty (2000 (3) KLT 523)** also assumes relevance in the contextual situation. The learned counsel for the appellant relied on the said decision to canvass that in the case of a registered worker under the Act, on sustaining injuries in an accident within a scheme covered area in the course of and arising out of his employment the liability to pay compensation under the Act would be that of the Statutory Committee and at any rate, in respect of such an accident, the insurance company cannot be called upon to indemnify the insured. The 2[nd] respondent had not availed the opportunity to resist this appeal. It is also to be noted that besides filing a written statement admitting the accident and the engagement of the first respondent the 2[nd] respondent had not produced any material to establish such engagement before the Commissioner. Taking into M.F.A.(WCC)No.178/2007 10 account all these aspects we are of the considered view that the order by which the appellant has been fastened with the liability to pay compensation cannot be sustained with the available evidence. At the same time, taking note of the contentions raised before us by the first respondent we are of the view that the interest of justice demands a remand of this matter for fresh consideration. We are not oblivious of the settled position that a party cannot be permitted to fill up the lacuna in a case. At the same time, we will have to remind ourselves of the salutary maxim “ _Actus curiae neminem gravabit_ '. The above said crucial aspect ought to have been considered for determining the entitlement of the first respondent to get compensation by the Commissioner. In such circumstances, we are of the view that it is only appropriate to remand the matter for fresh consideration. But, at the same time, it is a fact that now, it cannot be remanded for consideration of the Commissioner as by virtue of the subsequent change in the position of law, the jurisdiction to consider such matters now vests with the Industrial Tribunal notified as an authority to decide the grant of compensation under the Employees' Compensation Act. In the above circumstances, the impugned order is set aside. The matter is remanded to the Industrial Tribunal having M.F.A.(WCC)No.178/2007 11 jurisdiction, on the subject matter involved in this case, for a fresh consideration in accordance with law, as expeditiously as possible. It is made clear that a fresh decision shall be taken after affording opportunity to adduce evidence to both sides. It is also made clear that the entitlement of the first respondent to claim compensation and also liability to pay the same would depend upon the outcome of such fresh consideration. Needless to say that the right to retain any amount received by the first respondent would also be subject to the outcome of such decision. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS