Sushama d/o Nesamma v. V. Chandran Chitra Enterprises, Pangodu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934 MFA.No. 196 of 2011 ( ) ----------------------JUDGMENT IN WCC.73/2006 of COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER,KOLLAM APPELLANT/OPPOSITE PARTY: ------------------------- V.CHANDRAN CHITRA ENTERPRISES, PANGODU. BY ADVS.SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENT/APPLICANT: ------------------------ SUSHAMA D/O.NESAMMA, KALLUKUZHIYIL VEEDU, CHOZHIAKODE, KULUTHUPUZHA, PATHANAPURAM TALUK-691 310. BY ADV. SRI.B.MOHAN LAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN, J.** ## **---------------------------** ## **M.F.A. No.196 OF 2011** ## **-------------------------Dated this the 2[nd] day of November, 2012** ## **J U D G M E N T** This appeal arises from the judgment delivered by the Court of the Commissioner for Workmen’s Compensation, Kollam on 22.2.2011 in W.C.C.No.73 of 2006, an application filed by the respondent herein under section 22 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as 'the Act' for short) claiming the sum of Rs.75,000/- as compensation for the injuries stated to have been sustained by her in an accident, which it was alleged, arose out of and in the course of her employment under the appellant. By the impugned judgment, the Court of the Commissioner for Workmen’s Compensation, Kollam awarded the sum of Rs.56,932/- as compensation and directed the appellant herein to deposit the said amount together with interest at 12% per annum from the date of the accident namely 26.12.2002 till the date of deposit, within 30 days from the date of intimation of the judgment. The brief facts of the case are as follows: 2. On 7.5.2003, the respondent herein filed an application in Form F claiming the sum of Rs.75,000/- as compensation from the appellant. The said application was taken up for preliminary MFA No.196/2011 2 examination of the applicant and she was examined on oath on 8.11.2005. Later, she was again examined on oath on 9.1.2007 and the application was taken on file and notice issued to the opposite party (the appellant) for appearance. Upon receipt of notice, the appellant entered appearance through counsel and filed written objections. He contended inter alia that the applicant is not his worker, that he was not a contractor on 26.12.2002 as alleged in the application and that the injury is not listed in the list of injuries deemed to result in permanent partial disablement. He also contended that no accident as alleged took place on 26.12.2002. On an application filed by the applicant on 6.1.2009, the Court of the Commissioner for Workmen’s Compensation issued a requisition to the Superintendent, Medical College Hospital, Thiruvananthapuram to cause the loss of earning capacity of the applicant to be assessed by a competent medical authority at her cost. A similar requisition was issued to the Superintendent, General Hospital, Thiruvanathpuram. The Superintendent, General Hospital, Thiruvananthapuram constituted a medical board which examined the applicant and forwarded Ext.X1 certificate dated 14.8.2009 to the Court of the Commissioner for Workmen’s Compensation along with a covering letter dated 28.8.2009. In Ext.X1 certificate, the medical board had MFA No.196/2011 3 assessed the applicant's disability as 15% in the Mild Category. 3. Before the Court of the Commissioner for Workmen’s Compensation, the applicant was examined as AW-1 and Exts.A1 to A3 and X1 were marked. The appellant was examined as RW-1. After the evidence was closed, the applicant filed an application dated 19.10.2010 for re-opening the evidence for the purpose of examining a co-worker. That application was allowed and the co-worker was examined as AW-2. The Court of the Commissioner for Workmen’s Compensation thereafter heard the learned counsel for the parties and by the impugned judgment held that the applicant was employed under the appellant and she sustained a personal injury in an accident which arose out of and in the course of her employment under the appellant. The Court of the Commissioner for Workmen’s Compensation thereafter proceeded to quantify the amount of compensation to be awarded, held that the applicant is entitled to receive the sum of Rs.56,932/- as compensation and directed the appellant to deposit the said amount together with interest at 12% per annum from the date of the accident till the date of deposit. Hence this appeal. 4. The appellant has in the memorandum of appeal formulated the following substantial questions of law: MFA No.196/2011 4 _“1. Is not the finding of the Commissioner regarding employer-employee relationship between the appellant and the respondent perverse in as much as the same is based on no evidence._ _2. Is not the judgment of the Commissioner perverse in as much as the same was rendered without framing and deciding an issue in respect of issuance of notice of accident to the appellant as mandated under Section 10 of the Workmen's Compensation Act and which was specifically denied by the appellant in his written objection._ _3. Is not the award of compensation perverse in as much as award has been made upon reckoning the monthly wages as Rs.3250/- and age as 36 when the monthly wages mentioned in the claim petition is only Rs.2850/- and age is 37 years._ _4. Is not the award of interest to the claimant at the rate of 12% from the date of accident perverse in as much as there is no evidence for issuance of notice of accident and consequently no default on the part of the employer in paying the compensation till final adjudication of the case.”_ 5. I heard Sri.K.B.Gangesh, learned counsel appearing for the appellant and Sri.B.Mohanlal, learned counsel appearing for the respondent. The learned counsel appearing for the appellant contended that before the application under section 22 of the Act was filed, notice had not been given as stipulated in section 10 of the Act and therefore, on the terms of sub section (1) of section 10 of the Act, the claim for compensation was not maintainable. The learned counsel contended that the applicant has not explained her failure to give notice under section 10 of the Act, that the Court of the Commissioner for Workmen’s Compensation has not held that failure to give notice MFA No.196/2011 5 was due to sufficient cause and therefore, for that reason also, the impugned judgment is liable to be set aside. Referring to the application for compensation filed before the Court of the Commissioner for Workmen’s Compensation, the learned counsel for the appellant contended that the applicant has not mentioned the place where the alleged accident took place, that the only statement in the application is that she sustained a personal injury on 26.12.2002 while in the course of employment under the appellant, that in the application nothing had been stated about the giving of notice as required under section 10 of the Act or the reason why no such notice was given and it was only when the applicant was examined as AW-1 that she mentioned that the alleged accident took place in a forest and therefore, the Court of the Workmen’s Compensation Commissioner erred in holding that the respondent sustained injury in the course of her employment under the appellant and the accident arose out of such employment. The learned counsel contended that the evidence on record would cut at the root of the applicant’s case that while in the course of her employment under the appellant an accident took place on 26.12.2002 and in that accident she sustained an injury which resulted in the amputation of her right index finger. The learned counsel for the appellant contended that on the evidence available, the MFA No.196/2011 6 Court of the Workmen’s Compensation Commissioner could not have entered a finding that the applicant sustained injuries in an accident which took place during the course of her employment under the appellant and therefore, the judgment awarding compensation is liable to be set aside. 6. Per contra, Sri.B.Mohanlal, learned counsel appearing for the respondent/applicant contended with reference to the testimony tendered by the applicant’s co-worker examined as AW-2 and the documents produced on the side of the applicant, that the evidence available in the case adequately establishes the fact that the applicant was an employee under the appellant and in the course of such employment she sustained injuries in an accident, resulting in the amputation of her right index finger. The learned counsel contended that the fact that the right index finger of the employee was amputated is borne out by Ext.A1 discharge card and Ext.X1 disability certificate and therefore, the Court of the Commissioner for Workmen’s Compensation was perfectly right in awarding compensation. The learned counsel lastly contended that the appellant who has not produced the muster rolls, which he is required to maintain under the Minimum Wages Act, 1948, cannot be heard to contend that the burden lies on the applicant to prove that she was an MFA No.196/2011 7 employee in the appellant’s establishment. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The Court of the Commissioner for Workmen’s Compensation has by the impugned judgment held that the testimony tendered by the applicant who was examined as AW-1 and the co-worker examined as AW-2 coupled with Exts.A1, A2, A4 and X1 establish the fact that the applicant was an employee under the appellant and in the course of such employment she sustained an injury as a result of an accident which took place on 26.12.2002. The case set out by the applicant is that in an accident which took place on 26.12.2002 while in the course of her employment under the appellant, she sustained an injury which resulted in the amputation of her right index finger. The application for compensation dated 7.5.2003 filed by the applicant on 8.5.2003 in the Court of the Commissioner for Workmen’s Compensation, Kollam is extracted below in full: ## _APPLICATION FOR COMPENSATION BY WORKMEN_ _To_ _THE COMMISSIONER FOR WORKMEN'S COMPENSATION, KOLLAM._ _SUSHAMA, D/O.NESAMMA, residing at Kallukuzhiyil Veedu, Chozhitakodu, Kulathupuzha, Pathanapuram Taluk, Kollam District ....................Applicant. Versus._ _V.Chandran, Owner, Chithra Enterprises, Pangodu......Opposite Party._ MFA No.196/2011 8 ## _It is hereby submitted that:_ _1. The applicant, a workman employed by (a contractor with) the opposite party on 26.12.2002 received personal injury by accident arising out of and in the course of his employment._ _The cause of injury was (here insert briefly in ordinary languages the cause of the injury) while cutting and removing woods, a log fell on the applicant's right index finger._ _2. The applicant sustained the following injuries, namely... traumatic amputation of right index finger at the level of shaft._ _3. The monthly wages of the applicant amounts to Rs.2875/-P.M. The applicant is 37 years._ _4. a. Notice of the accident was served on the same day._ _b. Notice was served as soon as practicable._ _c. Notice of the accident was not served (in due time) by_ _reason of ........................._ _5. The applicant is accordingly entitled to receive_ _(a) Half monthly payment of Rs......from the ....day of ........_ _(b) A lump sum payment of Rs.75,000/-_ _6. The applicant has taken the following steps to secure a settlement by agreement, namely:......._ _Direct negotiation......._ _.................but it as proved impossible to settle the questions in dispute because of the attitude of the opposite party._ _You are therefore requested to determine the following questions in dispute, namely:-_ _(a) Whether the applicant is a workman within the meaning of the Act._ _(b) Whether the accident arise out of or in the course of the applicant's employment._ _(c) Whether the amount of compensation claimed is due or any part of that amount._ _(d) Whether the opposite party is liable to pay such compensation as due. (e)....etc as required_ _sd/Dated 7.5.2003 Applicant. Clarified that the statement of facts contained in this application is to the best of my knowledge and belief accurate._ _sd/Applicant Sushama._ 8. The case set out by the applicant in the application is that she, a workman employed by the opposite party on 26.12.2002 sustained a personal injury in an accident arising out of and during the MFA No.196/2011 9 course of her employment. It is stated that while cutting and removing woods, a log fell on the applicant’s right index finger. As regards service of notice, the applicant has not stated that notice of the accident was served on the same day or at any later point of time or that notice was not served for some reason or the other. The applicant has not in the application for compensation adopted a definite stand as regards service of notice or contended that the respondent was aware of the accident or that notice was served on him in the manner stipulated in sub section (4) of section 10 of the Act or for some reason or other, the notice was not served on him. A preliminary examination of the applicant as contemplated in rule 23 of the Workmen’s Compensation Rules was first held on 8.11.2005 and during that examination she stated as follows: ¾ÞX ¨ çµØßæÜ ¥çÉf µfßÏÞÃí.å®ÈßAá ®ÄßVµfßØíÅÞÉÈJßW Ä¿ß ©øáGßÎÞxáK µâÜßMÃßÏÞÏßøáKá.å2002åDec 26 ç¼ÞÜß æºÏñáæµÞIßøáKçMÞZ Ä¿ß ©øáIáÕKí èµÏßÜ߿ߺîí ÕÜÄá èµÏáæ¿ ºâIáÕßøW ÎáùßEáçÉÞÏß.. µ¿AW ·Õ. ¦ÖáÉdÄßÏßÜᢠÉßKà¿í MCH TVM ÜᢠºßµßÄíØߺîá. 7 ÆßÕØ¢ ¥Õßæ¿ µß¿Ká ºßµßÄíØߺîá. 2875 øâ. ÎÞØÖO{¢ µßGáÎÞÏßøáKá.å¥Éµ¿ØÎÏJá 37 ÕÏTá dÉÞÏÎáIÞÏßøáKá.å75000 øâ. È×í¿ÉøßÙÞø¢ ÄøÃæÎKçÉfÏáIí. ## The English translation is as follows:- I am the applicant in this application. My work in the respondent's establishment was to handle timber. On 26.12.2002 while I was working, a log of timber hit my arm and the right index finger was amputated. I was treated in Government Hospital, Kadakkal and later in Medical College MFA No.196/2011 10 Hospital, Trivandrum. I was treated as an inpatient for 7 days. Rs.2750/- was my monthly wages. I was aged 37 years. I pray that Rs.75,000/- may be given as compensation. ## 9. When the appellant was again examined on oath on 9.1.2007 ## she stated as follows: ¾ÞX ¨ çµØßæÜ ¥çÉf µfßÏÞÃí. ®ÄßVµfßØíÅÞÉÈJßW µâÜßMÃßÏÞÏßøáKá. ÕßùµáæÕGßæµÞIßøáKçMÞZ 26.12.2002 ²øá Ä¿ß §¿ßºîßùBß ÕÜÄá èµÏáæ¿ ºâIÞÃßÕßøW ÎáùßEáçÉÞÏß. µ¿AW ·Õ. ¦ÖáÉdÄßÏßÜᢠÉßKà¿í TVM MCH ÜᢠºßµßÄíØߺîá. È×í¿ÉøßÙÞø¢ ²KᢠÄKßGßÜï. 37 ÕÏTá dÉÞÏÎáIÞÏßøáKá. 2875 øâ. dÉÄßÎÞØ¢ ÖO{¢ µßGáÎÞÏßøáKá. 75000 øâ. È×í¿ÉøßÙÞø¢ ÈWµÞX ÕßÇßÏáI޵â. È×í¿ÉøßÙÞø¢ ¦ÕÖcæMGßGá ÄKßGßÜï. ## The English translation is as follows:- I am the applicant in this application. I was working as a coolie in the respondent's establishment. On 26.12.2002 while I was cutting firewood, a log of timber hit my arm and the right index finger was amputated. I was treated in Government Hospital, Kadakkal and later in Medical College Hospital, Trivandrum. I have not been paid any compensation. I was aged 37 years. I used to get Rs.2750/- as monthly wages. I pray that an award may be passed directing payment of Rs.75,000/- as compensation. Compensation has not been paid after demand. 10. The case set out by the applicant in the application and when she was examined under rule 23 are different and distinct. In the application she had stated that while cutting and removing woods, a log fell on her right index finger as result of which it was amputated at the level of the shaft. When examined under rule 23 on the first occasion she stated that she was engaged in handling timber in the MFA No.196/2011 11 appellant's establishment and in the course of such employment a log of timber hit her right hand leading to amputation of the right index finger. She had also stated when examined under rule 23 that after the accident she was treated in Kadakkal Government Hospital and later in Medical College Hospital, Thiruvananthapuram. When examined under rule 23 on the second occasion she stated that while she was cutting firewood in the respondent's establishment, a log of timber hit her resulting in amputation of the right index finger. When examined as AW-1 she deposed that the accident took place at 12.45 pm on 26.12.2002 when she was handling cut timber in the forest coupe. She deposed that a log of timber hit her and as a result thereof her right index finger was amputated and she sustained injuries on her left leg. She also deposed that she was immediately taken by the co-workers to Government Hospital, Kadakkal from where she was immediately taken to Medical College Hospital, Thiruvananthapuram and there she underwent treatment for four days. When cross-examined she admitted the fact that she is presently not employed. During the cross examination she was asked about the statement in Ext.A1 discharge card that she was admitted as an inpatient on 27.12.2002. She stated that after she was taken to the causality ward on 26.12.2002 she was treated only the next day. The MFA No.196/2011 12 appellant was thereafter examined as RW-1 and after he was examined, the evidence was closed. Later, on application filed by the applicant, AW-2 who is stated to be a co-worker of the applicant was examined. She also deposed that the accident took place at about 12.45 pm on 26.12.2002 and immediately thereafter the applicant was taken to Kadakkal Hospital from where her mother and the elder sister took her to Medical College Hospital, Thiruvananthapuram. 11. The case set out in the application and the testimony tendered by the applicant examined as AW-1 and the co-worker examined as AW-2 is that the alleged accident took place on 26.12.2002 and on the same day the applicant was taken for treatment firstly to Government Hospital, Kadakkal and thereafter to Medical College Hospital, Thiruvananthapuram. However Ext.A1 discharge summary discloses that the applicant was admitted as an inpatient in Medical College Hospital, Thiruvananthapuram on 27.2.2002 (Wednesday) and was discharged on 29.2.2002 with advice to come for review on Thursday, which is mentioned as the outpatient day in the discharge card. Ext.A2 treatment certificate also discloses that the applicant was admitted as an inpatient only on 27.2.2002. When examined as AW-1 the applicant had deposed that besides the injury to the right index finger which was amputated in the accident MFA No.196/2011 13 itself, she sustained injuries on her left leg and other parts of her right arm. However Ext.A1 discharge card discloses that the only injury which the applicant had sustained was traumatic amputation of the fourth index finger. No other injury is referred to either in Ext.A1 discharge card or in Ext.A2 treatment certificate. Having regard to the seriousness of the injury sustained by the applicant it does not stand to a reason that though she sustained a traumatic injury, namely amputation of the right index finger at about 12.45 pm on 26.12.2002, she was admitted in the hospital only on 27.12.2002. Though the applicant had claimed that she sustained injuries on the right arm and also on the left leg, the medical records do not disclose the said fact. The medical records in the case on hand establish the fact that the applicant sustained an injury only on 27.12.2002 and that injury was traumatic amputation of her right index finger. 12. The question that arises for consideration is whether the applicant has proved that she sustained that injury in an accident arising out of and in the course of her employment under the appellant. As stated earlier, in the application for compensation, apart from stating that she sustained a personal injury in an accident arising out of and in the course of her employment under the appellant, she had not mentioned the place where the alleged accident took place. MFA No.196/2011 14 When she was examined under rule 23 she stated that she was working in the establishment of the respondent and when timber was being moved, a log fell down and hit her right index finger resulting in its amputation. However she had different story to tell when she was examined as AW-1. As AW-1 she deposed that she was working in a forest coupe where she was handling cut timber and in the course of such employment, a log of timber fell and caused injuries to her right arm and left leg and in that accident her right index finger was amputated. The appellant denied the employer employee relationship and also the factum of the accident. It is evident from the application, the statement made by the applicant when examined under rule 23 and when she was examined as AW-1 that she has no consistent case regarding the place where she was employed. That apart, it is not in dispute that the applicant had not given notice of the accident in the manner prescribed under subsection (4) of section 10 of the Act to the appellant. Sub-section (4) of section 10 of the Act stipulates that a notice under section 10 may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book. 13. The applicant has no case in the application that a notice MFA No.196/2011 15 was sent by delivering it at the residence or office or place of business of the respondent or by sending it by registered post. She has also no case that the respondent is maintaining a notice book in the establishment and notice was given by making an entry in such notice book. She has also not set out the reason why notice as required under section 10 of the Act was not given. The Court of the Workmen's Compensation Commissioner has also not entered a finding that the failure to give notice was due to sufficient cause. A Division Bench of this Court has in **United India Insurance Co.Ltd. and another v.Komalam and others** (2007 (4) KHC 703) held that it is incumbent on the part of the claimant to furnish details regarding the date of service of notice of the accident on the employer and if such notice has not been served or has been not served in due time, the reason for such omission has to stated. It was held that in the case of claim for compensation against the employer it is incumbent on the part of the claimant to furnish details. In **Shakunthala Chandrakant Shreshti v. Prabhakar Maruti Garvali & another** (AIR 2007 SCC 248) the Apex Court held that not every accident which occurs to a man during the time when he is on his employment gives rise to a claim to compensation unless it also arises out of the employment. It was held that there must be a casual connection between the injury and the MFA No.196/2011 16 accident and the work done in the course of employment, that such a link of evidence cannot be a matter of conjecture and if a finding is entered without pleading or legal evidence, the statutory authority will be committing a jurisdictional error while exercising its jurisdiction. The Apex Court also held that a finding of fact arrived without there being any evidence also gives rise to a substantial question of law. 14. In the instant case, as noticed earlier, the documents produced on the side of the applicant establish the fact that she was hospitalised for treatment only on 27.12.2002. Her consistent case is that she sustained injuries in an accident arising out of and in the course of her employment under the appellant on 26.12.2002. She has no case that she sustained injuries in an accident arising out of and in the course of her employment under the appellant late in the evening of 26.12.2002 or early in the morning of 27.12.2002. The applicant examined as AW-1 and AW-2 who claims to be her co-worker have deposed that the accident took place at 12.45 pm on 26.12.2002. From the medical evidence on record it cannot be said that the applicant sustained injuries in an accident on 26.12.2002. That apart, the applicant has also not pleaded or proved that a notice in terms of section 10 of the Act had been served on the appellant or that for some justifiable reason such notice could not be served. The Court of MFA No.196/2011 17 the Commissioner for Workmen's Compensation has also not entered a finding that failure to give notice was due to sufficient cause. I am therefore of the considered opinion that the finding of the Court of the Commissioner for Workmen's Compensation that the applicant sustained injury in an accident arising out of and in the course of her employment under the appellant cannot be sustained. 15. The Court of the Commissioner for Workmen's Compensation has also relied on Ext.A4, which is a photocopy of an agreement alleged to have been executed by the appellant with trade union representatives in connection with the loading and unloading works in a forest coupe. Ext.A4 does not contain the signature of the applicant. It was also not marked in evidence either by AW-1 or AW-2 or by the appellant who was examined as RW-1. All that Ext.A4 stipulates that workmen will be paid wages at the rates stipulated. The impugned judgment was delivered on 22.2.2011. On a perusal of the files it is seen that Ext.A4 was marked only on 22.2.2011, the day the judgment was delivered. The examination of the witnesses had come to an end when AW-2 was examined on 21.12.2010. It is thus evident that Ext.A4, which is a photostat copy of an agreement stated to have been entered into by the appellant with trade union representatives which admittedly does not contain his signature, was pressed into MFA No.196/2011 18 service without notice to the appellant and behind his back to prove the applicant's case that she was employed under the appellant. Even assuming that Ext.A4 is admissible and can be safely relied on, it would only show that the appellant was the contractor to whom the work of clear felling trees in Coupe No.6 had been awarded and he had agreed to pay wages at the rates stipulated therein to the workers engaged by him. It would not show that the applicant was a worker under the appellant. That apart, the applicant has not examined any of the 8 trade union representatives who have subscribed their signature to Ext.A4. Apart from the appellant, Sri.C.M.Koya who is the proprietor of Bismi Wood Industries, Perumbavoor is also shown as a contractor in Ext.A4. His signature is also lacking in Ext.A4. In such circumstances, I am of the opinion that Ext.A4 cannot be relied on to hold that the applicant was an employee under the appellant. In the absence of any proof to show that the applicant was engaged under the respondent on 26.12.2002, I am of the opinion that the finding entered by the Court of the Commissioner for Workmen's Compensation cannot be sustained. 16. Though the learned counsel appearing for the respondent contended that the appellant ought to have produced the muster roll required to be maintained by him under the Minimum Wages Act, 1948 MFA No.196/2011 19 and rule 29 of the Kerala Minimum Wages Rules, 1950 and for failure to produce the muster roll an adverse inference should be drawn against the appellant, I am of the opinion that there is no merit in the said contention. The applicant examined as AW-1 has admitted in cross-examination that she is presently not employed. She had not stated that she was an employee of the appellant from a date anterior to the date of the alleged accident. When examined as AW-1 her only case was that when she was engaged to do work in the forest, the alleged accident took place. That apart, under rule 29(a) of the Kerala Minimum Wages Rules, 1950 an employer is required to preserve the muster roll only for a period of three years after the date of the last entry made. The alleged accident took place on 26.12.2002. The claim petition was taken on file and summons issued to the appellant to appear only on 9.1.2007 after the expiry of four years. Even going by the version of AW-2, the work in the forest coupe was only for a period of two months. In such circumstances, I am of the opinion that nothing turns on the failure of the respondent to produce the muster roll if any maintained by him. For the reasons stated above, I allow the appeal, set aside the judgment dated 22.2.2011 passed by the Court of the Commissioner for Workmen's Compensation, Kollam in W.C.C.No.73 of 2006 and MFA No.196/2011 20 dismiss the claim petition. The parties shall bear their respective costs. **P.N.RAVINDRAN, JUDGE.** Vps/rkc MFA No.196/2011 21 MFA No.196/2011 22 MFA No.196/2011 23 MFA No.196/2011 24 MFA No.196/2011 25