Travancore Devaswom Board v. Valsalakumary T.S., Gopika and Govind

**MFA (ECC) NO.31/2024** 1 2025:KER:30057 **==> picture [57 x 58] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947** ## **MFA (ECC) NO.31 OF 2024** **ARISING OUT OF THE ORDER DATED 30.01.2024 IN ECC NO.43 OF 2018 OF EMPLOYEES COMPENSATION COMMISSIONER, IDUKKI, PEERMADE** ## **APPELLANTS/OPPOSITE PARTIES 1 TO 3:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWADIYAR P.O, THIRUVANANTHAPURAM, PIN - 695003** **2 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWADIYAR P.O, THIRUVANANTHAPURAM, PIN - 695003** - **3 ASSISTANT DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, KOTTAYAM GROUP OFFICE, VADAKKENADA, THIRUNAKKARA, KOTTAYAM, PIN - 686001** **BY ADV G.SANTHOSH KUMAR** ## **RESPONDENTS/APPLICANTS 1 TO 3:** - **1 VALSALAKUMARY. T.S** - **W/O.M.G.MADHUSOODHANAN, AMBADY, PARIYARAM, KOTTAYAM, PIN - 686021** - **2 GOPIKA** **D/O.M.G.MADHUSOODHANAN, AMBADY, PARIYARAM, KOTTAYAM, PIN - 686021** - **3 GOVIND** - **S/O.M.G.MADHUSOODHANAN, AMBADY, PARIYARAM, KOTTAYAM, PIN - 686021** **MFA (ECC) NO.31/2024** 2 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 **BY ADVS.** **GOPAKUMAR R.THALIYAL, R1 TO R3 R.B.BALACHANDRAN(K/411/2004), R1 TO R3** **THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA (ECC) NO.31/2024** 3 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 ## **JUDGMENT** _Dated this the 04[th] day of April, 2025_ This appeal is filed challenging the order in E.C.C.No.43 of 2018 dated 30.01.2024 on the files of the Employees Compensation Commissioner (ECC), Idukki, Peermade. The appellants were the opposite parties and the respondents were the applicants in the said proceedings. Parties are hereinafter referred to as per their status before the ECC. 2. Applicants are the wife and children of deceased M.G. Madhusoodanan who was a _Thakil_ player employed under the opposite parties. He had a fall in the premises of the Puthiyakavu Devaswom Temple on 18.10.2014. He was on night duty. He was taken to the hospital in the early morning of 19.10.2014 with severe pain due to a cervical spine injury. He underwent treatment and a major surgery on 29.10.2014. However, he succumbed to death on 15.11.2014. Terming his death as arising from an accident in the course of employment with the opposite parties, the applicants moved the ECC seeking compensation of Rs.5,84,800/- invoking the provisions of the Workmen's Compensation Act, 1923 (hereinafter **MFA (ECC) NO.31/2024** 4 2025:KER:30057 **==> picture [57 x 58] intentionally omitted <==** referred to as 'the Act'). 3. The ECC framed five issues and parties adduced evidence. Exhibits A1 to A7 were marked and AW1 and AW2 were examined by the applicants. Exts.R1 and R2 were marked and RW1 was examined by the opposite parties. After hearing, the ECC vide order impugned, awarded a compensation of Rs.5,84,800/- with 12% interest and cost. The opposite parties challenge the same in this appeal. ## 4. The substantial question for consideration is as follows: _“Can an employee who was not holding any duty in the temple as of the date of the alleged incident be entitled to Workmen's Compensation and whether such incident can be termed as one caused during the course of employment?”_ 5. Heard Sri.Santhosh Kumar G., Advocate for the appellants/ opposite parties and Sri.Gopakumar R.Thaliyal for the respondents/ applicants. 6. The learned counsel for the opposite parties submitted that even the application before the ECC itself was hopelessly barred by limitation as it was filed 4 years after the incident. As per section 10 of the Act, the application has to be filed within a period of 2 years and the Commissioner has the power to entertain an application after the **MFA (ECC) NO.31/2024** 5 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 expiry of the period of 2 years only if proper reason has been shown. No justifiable or proper reason has been shown to condone the delay in filing this appeal. The ECC had proceeded on surmises and conjectures rather than on facts and legal principles. There has been no finding to the effect that the injury sustained by the deceased employee had occurred during the course of his employment. The learned counsel relying on the register regarding night duty ( _Kidamura_ register) which was maintained by the opposite parties does not reveal that the deceased was on night duty on the relevant date. The deceased was employed as a _Thakil_ player. The death was not during the course of playing the _Thakil_ at the temple. The factual aspects that lead to the death of the deceased as put forth do not reveal any connection whatsoever with the employment of the deceased. AW2 who was examined from the side of the applicant had during cross examination confronted with the _Kidamura_ register and he had admitted that on the relevant day, the deceased employee was not on duty. This crucial evidence was ignored by the ECC. There was no night duty as alleged and night duty was assigned only in cases of urgency. Persons employed as the _Thakil_ players are not assigned night duties, especially as _Kidamura._ There **MFA (ECC) NO.31/2024** 6 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 were no eyewitnesses to the alleged incident and yet the ECC held that the deceased employee had met with the accident while on duty. There was no direct evidence before the ECC to come to such a conclusion. The ECC should have relied on Exts.R1 and R2 _Kidamura_ register which clearly proves the fact that on 18.10.2014 the deceased employee was not holding any duty in the temple. The injury and the death were not arising out of or in the course of employment. There must be a causal relationship between the accident and the employment. The expression arising out of employment is not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. Only if the accident had occurred on account of a risk which is an incident of employment, would the claim for compensation succeed. Reliance is placed on the dictum laid down in **Sunder Pal v. Sunder** [2021 KHC 4058]. Accident, ordinarily will have to be understood as uncomprehended or as one which could not be foreseen. A finding of fact has to be arrived at _inter alia_ having regard to the nature of the work and the situation in which the deceased was placed. There is a crucial link between the casual connections of employment with death. Such a **MFA (ECC) NO.31/2024** 7 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 link with evidence cannot be a matter of surmise or conjuncture. Reliance is placed in this respect on the dictum laid down in **United India Insurance Co. Ltd. v. Devkumari and others** [2020 KHC 2929]. As laid down by the Supreme Court in **Jyothi Ademma v. Plant Engineer, Nellore and another** [(2006) 5 SCC 513] there has to be some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of the employment, no liability would be fixed upon the employer. Reliance is placed in this respect on the dictum laid down by the Supreme Court in **Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahommad Issak** [1969 KHC 558]. The ECC had rendered the impugned order finding that the employee had suffered a heart attack in the course of the employment. Only because the cause of death was due to a heart attack does not by itself be a ground to arrive at a conclusion that an accident had occurred resulting in injury. Reliance is placed in this respect on the dictum laid down by the Supreme Court in **Shakuntala v. Prabhakar** [2006 KHC 1813] This Court had held in **Branch Manager, National Insurance Co. Ltd. v. Shahina** **MFA (ECC) NO.31/2024** 8 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 **and Ors.** [2017 (5) KHC 407] that the expression arising out of employment means that there must be a causal relationship between the accident and the employment. If the accident had occurred on account of the risk which is an incident of employment, only then can it be held that the accident has arisen out of the employment and in the course of employment. The said requirement has not been met in the facts of the case at hand. The learned counsel for the Devaswom thus vehemently sought to set aside the impugned order. 7. _Per contra,_ the learned counsel appearing for the applicants submitted that the order of the ECC does not require any interference as it had been laid down in accordance with the law. Refuting the contention that _Thakil_ players are not assigned night duties, especially as _Kidamura,_ the learned counsel relying on the _Kidamura_ register submits that there had been instances when the _Thakil_ players were assigned night duties. Hence the purported reliance based on the register by the Devaswom is termed as unreliable. He further buttresses the said submission by pointing to the objection filed wherein there had been no denial that the deceased was not on duty on the fateful day and further submits that the objection reveals that the employer-employee relationship stands admitted. With **MFA (ECC) NO.31/2024** 9 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 respect to the contention regarding limitation, it is submitted by the learned counsel that the Act is a welfare enactment to provide compensation moving to unfortunate fatal accidents or any other accidents suffered by a workman. The provisions thereof are to be benevolently construed in favour of the workman. Reliance is placed on the dictum laid down in **Ramachandran P. and another v. M. Amutha and others** [2022 KHC 2674] and **Leela Bai and another v. Seema Chouhan and another** [(2019) 4 SCC 325]. The learned counsel further invokes the concept of notional extension relying on the dictum in **Daya Kishan Joshi and another v. Dynemech Systems Pvt. Ltd.** [2017 KHC 5071] and submits that the incident that occurred within the premises of the temple that too in the building assigned to the employees to take rest can only be deemed as the accident that had taken place in the course of employment. That an appeal under the Act is not an open appeal and this court would not proceed to re-examine the factual aspects arrived at by the ECC is conveyed by relying on the dictum laid down by the Supreme Court in **Fulmati Dhramdev Yadav v. New India Assurance Co. Ltd.** [2023 KHC 6818]. It is thus submitted by the learned counsel that no substantial question of law is revealed and that the appeal is only to **MFA (ECC) NO.31/2024** 10 2025:KER:30057 **==> picture [57 x 58] intentionally omitted <==** be dismissed. 8. I have heard both sides in detail and have considered the contentions put forth. It is trite law as laid down by the Hon’ble Supreme Court in **C. Manjamma and another v. Divisional Manager, New India Assurance Company Ltd.** [(2022) 6 SCC 206] that an appeal is maintainable before this Court from an order of the ECC only if a substantial question of law arise from the same. This Court can interfere with the findings of the ECC only if the findings are perverse or suffer from any manifest illegality to give rise to a substantial question of law. As regards the contentions based on limitation, I note that as per section 10 of the Act, the ECC has the power to entertain the claim application after expiry of the stipulated period of 2 years if sufficient cause is shown. Once the said power has been exercised by the ECC in accordance with law and without any perversity there cannot be an interference on the same at the appellate state. [See **Lila Bai v. Mehrban Singh** (2021 KHC 2935)]. It is the specific contention of the appellants/opposite parties that there was no evidence to attribute the death to the injury allegedly suffered while the deceased was in the temple premises. I note this essentially is a question of fact that falls within the sphere of the ECC **MFA (ECC) NO.31/2024** 11 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:30057 to appreciate and arrive at based on the evidence tendered. Once the said appreciation has been carried out by the Commissioner and a decision arrived at on that factual aspect, the scope for interfering with the same by this Court in an appeal is extremely limited. The question whether the employee was holding any duty in the temple as of the date of the alleged incident or not is a factual question which already stands answered by the ECC in favour of the employee. This Court cannot then sit in appeal over the same. Once the said question has been answered by the ECC in favour of the employee and it has thus become final, the ancillary question as to whether the incident could be termed as one caused during the course of employment also stands answered. Nothing has been revealed to lead me to conclude that the order impugned suffers from perversity. In view of the above, the substantial question of law framed stands answered in favour of the respondents/applicants and against the appellants/opposite parties. The MFA (ECC) is dismissed. No costs. The interim stay granted is vacated. All interlocutory applications are closed. **Sd/-** **SYAM KUMAR V.M. JUDGE** csl **MFA (ECC) NO.31/2024** 12 2025:KER:30057 **==> picture [57 x 58] intentionally omitted <==** ## **APPENDIX OF MFA (ECC) 31/2024** ## **PETITIONER ANNEXURES** **Annexure-A1 True copy of the receipt dated 25/05/2024 showing the deposit of Rs.12,58,880/- before the Employees Compensation Commissioner and Industrial Tribunal, Idukki .** **Annexure COPY APPLICATION**