MFA.(WCC)No. 22 of 2010 & WP(C).No.11188 of 2012

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934** ## **MFA.(WCC)No. 22 of 2010 ( )** **---------------------AGAINST THE ORDER/JUDGMENT IN W.C.CASE NO.214/1996 of WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER, KANNUR DATED 10-04-2008** **....** ## **APPELLANT(S)/PETITIONERS:** **---------------------------------------------** ## **1. C.MAYINKUTTY, S/O.A.ABDU,PUTHIYAPURAYIL HOUSE,P.O.PINARAYI.** **2. A.T.PATHOOTTY, D/O.IBRAHIM,W/O.MAYINKUTTY,THIRUVANGALATH HOUSE, ERANHOLI,ARINGALOT,P.O.VADAKKUMBAD.** **BY ADVS.SRI.M.SASINDRAN SRI.M.V.BIPIN** **RESPONDENT(S)/OPPOSITE PARTIES:** **-----------------------------------------------------------** **1. PARAYIL BALAN NAIR, OWNER OF K.V.R.COMPLEX,NEAR MAHATMA MANDIR,KANNUR-1.** ## **2. K.V.GOPALAN, CONTRACTOR,`USHAS',PANTHEERANKAVU, KOZHIKODE.** ## **3. K.SATHYAN,** ## **KAVILLATHIL HOUSE,KUNNIRIKKARA,P.O., PUTHIRIYAD, KANNUR.** **R1 BY ADV. SRI.P.U.SHAILAJAN R2 BY ADVS. SRI.SRINATH GIRISH SRI.E.NARAYANAN R3 BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.T.PRAVEEN** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2012 ALONG WITH WPC.NO. 11188/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## Thottathil B.Radhakrishnan & K.Vinod Chandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = M.F.A.No.22 of 2010 & ## WP(C).No.11188 of 2012 = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of July, 2012 ## JUDGMENT ## Thottathil B.Radhakrishnan,J : 1.The appellants in the captioned appeal lost their son while he was 18 years old. He was working under Sathyan, the third opposite party in the application filed under the Workmen's Compensation Act before the Commissioner. Sathyan was the contractor for laying marble in a building being constructed by Parayil Balan Nair, the first opposite party in that case. The contract for putting up the structural works was given to K.V.Gopalan, the second opposite party therein. MFA22/10 & WPC11188/12 -: 2 :- 2.At the outset, we shall deal with the contentions of the appellants in the appeal that the Commissioner has not fixed adequate compensation. The date of accident is 6.4.1996. The impugned award is not criticized regarding the multiplier adopted. The only attack is on the monthly wages fixed. The Commissioner took note of the Government Order dated 14.6.1988 and held that the daily wages under the Minimum Wages Act at the relevant point of time was around Rs.59/-, for skilled labourers. The deceased, then only 18 years of age, who died on 6.4.1996, was held to have drawn an amount of Rs.59/- per day and Rs.1,534/- per month, though the applicants claimed that the deceased was drawing Rs.2,500/per month. We think that while the learned Commissioner was justified in treating him as an unskilled labourer, at the age of 18 years, the wages could have been taken as Rs.2,000/- per month since Rs.1,534/- per month is reflected by the minimum wages notification dated 14.6.1988 MFA22/10 & WPC11188/12 -: 3 :- and the accident occurred on 6.5.1996, that is, about eight years after the minimum wages were fixed. To that extent, the appellants would succeed in the appeal because we are of the view that the Commissioner failed to note the time lag between the notification under the Minimum Wages Act and the date of accident and this gives rise to a substantial question of law to interfere in favour of the appellants in the appeal, in that regard. - 3.The appellants have the further case that it is Parayil Balan Nair, the owner of the premises, who should pay compensation and not Sathyan, the third opposite party who has been found to be the person engaged as a contractor for laying the marble slabs. - 4.Incidentally, we may note that the captioned writ petition is filed by Sathyan on the premise that the captioned appeal having been admitted, he should not be proceeded against under the Revenue MFA22/10 & WPC11188/12 -: 4 :- Recovery Act, since all questions relating to the liability are at large in the appeal. - 5.Assimilating the testimony of the witnesses and contrasting it with the appellants' materials, the Commissioner has found on facts that the second opposite party Gopalan was not liable and the third opposite party Sathyan was the contractor for laying the marbles and deceased Rafeeque was working under him. Such finding having been rendered by the Commissioner, we do not see any error of law in the appreciation of evidence in that regard. - 6.Be that as it may, we also see that another issue is raised by the appellants themselves that Parayil Balan Nair, being the owner of the premises, he should be made liable. For one thing, Balan Nair cannot be treated as a person who has, in the course of or for the purpose of his trade or business, contracted with Sathyan. May be, Balan Nair was erecting a commercial MFA22/10 & WPC11188/12 -: 5 :- building, to be put to commercial use. But, the activity of constructing such a structure by itself, going by the evidence on record in the case in hand, does not show that he was involved in any commercial activity, business or trade. He could, at best, on facts, be treated only as a commercial consumer of the activity of construction for which contracts were given to the second and third opposite parties, in so far as it related to putting up the structure and the laying of the marble slabs. The learned counsel for the appellants cited the decision of the Division Bench of this Court in Payyannur Educational Society v. Narayani [1995(1) KLT 621]. The learned counsel for the first opposite party Balan Nair rightly points out that the Full Bench in Govindan Nair v. Janaki [2003(2) KLT 23 (FB)] later considered the effect of Narayani's case and held that Narayani was decided on the particular facts of that case after noticing that the society for whose property loan was being taken was repaying the amounts and such amounts MFA22/10 & WPC11188/12 -: 6 :- were being credited to the suspicious account. This nice distinction has been drawn to point out that at least a trade or business is to be necessarily there, if it has to be one that would fall under Section 12 of the Workmen's Compensation Act. We are of the view that on the facts of the case in hand and going by the material evidence, there is no room to disagree with the findings of the learned Commissioner on any ground of law. 7.We also see from the lower court records that there is a specific agreement which was placed before the learned Commissioner, though not vividly stated in the impugned order, showing the jural relationship between Sathyan and Balan Nair. Having gone through that, we see the clear statement that the second opposite party thereto (Sathyan) is solely responsible for the safety of employees and no claim of any such employees will be entertained by Balan Nair. Hence, we do not find any ground to interfere with the award in so MFA22/10 & WPC11188/12 -: 7 :- far as it stands against the third opposite party Sathyan. In the result, i. the appeal is allowed in part enhancing the compensation to be at Rs.2000x50x226.38 = Rs.2,26,380/-. 100 Rejecting all other contentions, the impugned award is modified ordering that the appellants in the appeal are entitled to Rs.2,26,380/- with 12% interest thereon from the date of accident till date of deposit from the third opposite party(Sathyan). If such amount is not paid before the learned Commissioner within a period of 45 days from the date of receipt of a copy of this judgment, the third opposite party will be liable to further penalty fixed at 10% of the compensation amount. MFA22/10 & WPC11188/12 -: 8 :- ii. The writ petition is dismissed in the light of the findings above and because it is not maintainable as the petitioner ought to have challenged the same by filing an appeal, if aggrieved. Issue copy urgently. Thottathil B.Radhakrishnan, Judge K.Vinod Chandran, Judge sha/260712