Zacharia Kurien @ Babu v. Sarasamma Gopi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939** **MFA(WCC)No. 30 of 2014 () ---------------------WCC 68/2002 OF COMMISSIONER FOR EMPLOYEE’S COMPENSATION COURT, KOTTAYAM.** **........** ## **APPELLANTS/OPPOSITE PARTIES:** **----------------------------** **1. ZACHARIA KURIEN @ BABU, KARIKKOTTUCHIRA HOUSE, NALUNAKKAL POST, VAGATHANAM, KOTTAYAM.** **2. KURIAKOSE, KARIKKOTTUCHIRA HOUSE, NALUNAKKAL POST, VAGATHANAM, KOTTAYAM - 686 538.** **BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** ## **RESPONDENTS/APPLICANTS:** **-----------------------** **1. SARASAMMA GOPI, POYKAPARAMBIL HOUSE, PUTHENCHANTHA POST, VAGATHANAM, KOTTAYAM - 686 538.** **2. ARATHI, D/O.GOPI, POYKAPARAMBIL HOUSE, PUTHENCHANTHA POST, VAGATHANAM, KOTTAYAM - 686 538.** **3. ARUN, S/O.GOPI, POYKAPARAMBIL HOUSE, PUTHENCHANTHA POST, VAGATHANAM, KOTTAYAM - 686 538.** **BY ADV. SRI.C.S.MANILAL** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2017 ALONG WITH MFA. 31/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **MFA(WCC)No. 30 of 2014 () -------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A : THE ORIGINAL COVER IN WHICH THE COPY OF THE ORDER WAS SENT TO THE 1ST APPELLANT. ANNEXURE B : THE ORIGINAL COVER IN WHICH THE COPY OF THE ORDER WAS SENT TO THE 2ND APPELLANT. ANNEXURE C : THE TRUE COPY OF LETTER DATED 22.3.2014 ISSUED BY THE COMMISSIONER FOR EMPLOYEES COMPENSATION KOTTAYAM, EVIDENCING DEPOSIT OF THE AWARD AMOUNT. RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** “CR” ## **K.HARILAL & A.MUHAMED MUSTAQUE, JJ.** _********************************************************************************************_ M.F.A(WCC) Nos.30 & 31 of 2014 _**********************************************************************_ Dated this the 14[th] day of September, 2017 ## JUDGMENT ## K.Harilal J. Since the parties are common and the appeals are directed against the same award, both the appeals are heard together and disposed of accordingly. 2. Appellants herein are the opposite parties in W.C.Case No.68/2002 on the file of the Commissioner for Employee's Compensation, Kottayam. The case of the applicants is that on 21.1.2002 the appellants/opposite parties employed Sri.Gopi, the husband of the first applicant for plucking coconut trees in their property. While he was climbing a coconut tree, a batch of wild bee bit him and he sustained injuries. Consequently, he fell down from the coconut tree and he was taken to Medical College Hospital, Kottayam; but he succumbed to the injuries on the way. According to the applicants, the accident was arising out of and in the course of his employment and thereby the appellants are liable to pay compensation under the Workmen's Compensation Act to the applicants for the loss sustained by them. M.F.A(WCC) Nos.30 & 31 of 2014 2 3. In the written statement, the appellants contended that the deceased Gopi was not a workman of the appellants and he was a coconut climber, who was plucking coconut for more than 30 persons in the locality. No accident occurred while plucking the coconut and the death was due to heart attack. In other words, according to the appellants, the death was not arising out of and in the course of his employment. Therefore, they are not liable to pay compensation to the respondents since the deceased Gopi was an independent self employed tree climber. The application was not maintainable under the Workmen's Compensation Act. 4. The evidence in the case consists of the deposition of AW1 to AW3 and RW1 and RW2 and Exts.A1 to A4. 5. After analysing the aforesaid evidence on record, the Commissioner found that the appellants are liable to pay compensation and they were directed to pay Rs.2,76,255/- along with interest @ 12% with effect from 21.1.2002 till deposit. 6. The legality and correctness of the aforesaid findings are challenged in this appeal. 7. Heard the learned counsel for the appellants. M.F.A(WCC) Nos.30 & 31 of 2014 3 8. The sum and substances of the argument advanced by the learned counsel for the appellant is that the court below miserably failed to analyse the cause of death in its correct perspective. According to him, the death was not arising out of and in the course of his employment. Further, it is contended that the deceased was not a workman as contemplated under Section 2(1) (n) of the Workmen's Compensation Act. The evidence on record would prove that he was a casual worker occasionally employed for plucking coconut trees and he was a self employed labourer. In support of the aforesaid contentions, the learned counsel for the appellants cited the decisions reported in **Thomas v. Babu [1995 KHC 2] and Central Mine Planning and Design Institute Ltd. v. Ramu Pasi and Another [2006 KHC 37]** . 9. Per contra, the learned counsel for the respondents advanced the arguments to justify the findings of the Commissioner for Employee's Compensation. According to him, the evidence on record would justify the findings of the Commissioner that the death was arising out of and in the course of his employment. M.F.A(WCC) Nos.30 & 31 of 2014 4 10. In view of the arguments at the bar, the first question to be considered is whether a coconut tree climber employed casually for plucking coconut would come under the purview of the Workmen's Compensation Act. It is the case of the appellants that the deceased was a casual coconut tree climber only and such casual workers will not come under the purview of the definition as contemplated under Section 2(1)(n) of the Workmen's Compensation Act. It is not disputed that the accident occurred on 21.1.2002. Going by the Workmen's Compensation Act, it is seen that there is an amendment in the definition of 'workmen' by omitting certain words with effect from 8.12.2000. It is further found that by Act 46 of 2000, which came into effect from 8.12.2000, the expression “other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business” is seen omitted from the definition of workmen. In other words, a very wide ranging definition encompassing 'casual workman' is given to 'workman', under Section 2(1)(n) of the Workmen's Compensation Act with effect from 8.12.2000. Therefore, it is held that the M.F.A(WCC) Nos.30 & 31 of 2014 5 coconut tree climber, employed casually for plucking coconut would come under the purview of the Workmen's Compensation Act. 11. Coming to the instant case, going by the impugned order, it is seen that the first appellant admitted in his deposition that the deceased was employed under him on 21.1.2002 for coconut plucking and it was only a casual employment. Since the definition of 'workman' under Section 2(1)(n) of the Workmen's Compensation Act, as on the date of the accident, encompasses 'casual workman' also, we find that from the admission of the appellants in their evidence, it can be safely concluded that the deceased Gopi was a workman falling under Section 2(1)(n) of the Workmen's Compensation Act. 12. The next question to be considered is whether the Commissioner for Workmen's Compensation is justified in finding that the accident was arising out of and in the course of his employment. As observed above, it is not disputed that the deceased was employed under the appellants on 21.1.2002 for coconut plucking and the accident occurred while he was engaged M.F.A(WCC) Nos.30 & 31 of 2014 6 in climbing a coconut tree. It is also admitted that wild bee bit him during the course of the climbing the coconut tree. Further, the appellants themselves admitted that the deceased was taken to hospital and on the way he was succumbed to injuries. 13. There arises a question whether there is any causal connection between the death and the accident occurred. It stands admitted that the accident occurred while he was engaged in climbing the coconut tree. In order to prove the causal connection between the employment and the accident and further between the accident and the death AW1 to AW3 were examined and Exts.A1 and A4 were marked in evidence. After analysing the evidence of AW1, the first respondent herein, the Commissioner for Employee's Compensation found that nothing has been brought out to discredit the evidence of AW1 and further the evidence of AW1 was supported by the evidence of AW2 and AW3. Further, the aforesaid evidence stands corroborated by Exts.A1 to A4. Ext.A3 is the post-mortem report and Ext.A4 is the copy of the F.I.R. We are of the opinion that the cause of death is founded on the opinion of the doctor, who conducted the post- M.F.A(WCC) Nos.30 & 31 of 2014 7 mortem. In Ext.A3, the doctor, who conducted the post-mortem opined that the death was due to intergraniel hummerage. Further, the report shows that the deceased sustained two injuries (Anti-mortem) that is (i) abrasion over an area 2.5X1.5 cm on the inner aspect of the left arm, 5 cm below the left armpit. (ii) Abrasion 0.7X0.5 cm on the front of the left knee. The external injuries found in the body of the deceased coupled with Ext.A3 post-mortem report and the oral evidence of AW1 to AW3 give rise to a reasonable inference that the death was due to the accidental fall from the coconut tree. It follows that the accidental fall was caused by the accidental wild bee bite, while he was climbing a coconut tree. This inference is strengthened by Ext.A1 to A4 and the admission from the part of RW1 that he found the deceased in the ground at the bottom of the coconut tree. We are of the opinion that the Commissioner for Employee's Compensation can be justified in finding that there was a causal connection between the death and the accident, which arose out of and in the course of his employment. M.F.A(WCC) Nos.30 & 31 of 2014 8 14. The learned counsel for the appellants vehementally contended that in view of the opinion expressed by the doctor, who conducted post-mortem it cannot be safely concluded that the death was caused by the accident. But, it is pertinent to note that in the written statement, the appellants contended that the death was caused by heart attack. We further observe that the respondents had succeeded in discharging the initial burden by adducing sufficient evidence. Then the burden was heavy on the appellants to rebut the facts which stands proved by the evidence of the respondents herein. But no attempt was made to rebut the aforesaid evidence by adducing cogent medical evidence or any other independent evidence as to the cause of the death, as alleged by the appellants. Therefore, in the absence of evidence, the Commissioner for Employee's Compensation is justified in relying on Ext.A3. The cause of death stands corroborated by external injuries found in the body of the deceased and the oral testimony of AW1 to AW3. We do not find any kind of illegality or impropriety in the appreciation of evidence from which the Commissioner for Employee's Compensation arrived at a finding M.F.A(WCC) Nos.30 & 31 of 2014 9 that the accident was arising out of and in the course of his employment and there was a causal connection between the accident and the death. In other words, it stands proved that the death was arising out of and in the course of his employment. We do not find any reason to interfere with the findings of the Commissioner for Employee's Compensation. 15. MFA (WCC) No.31 of 2014 was filed by the very same appellants against the same respondents challenging the interest granted to the respondents for the amount awarded as compensation. According to them, the appellants are not liable to pay interest from the date of accident and the delay in disposal of the case was caused by the respondents as well as the Tribunal. Going by the impugned judgment, it is seen that the appellant was directed to pay interest @ 12% with effect from 21.1.2002, the date of the accident, within thirty days of the receipt of the order. We are of the opinion that the payment of interest is a statutory liability vested with the appellants under the statute and in **Oriental Insurance Co. Ltd. v. Siby George [2012 (3) KLT 544]** , the Apex Court held that the interest is payable from the date of M.F.A(WCC) Nos.30 & 31 of 2014 10 the accident. We are unable to come to the conclusion that the delay in the disposal of the case was caused by the respondents alone, in the absence of any convincing material. We find that there is no reason to interfere with the interest portion also. We make it clear that the appellants are not liable to pay interest after the date of the deposit of the amount before the Commissioner for Employee's Compensation. These appeals will stand dismissed. Sd/- ## **K.HARILAL, JUDGE** Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ln