Kerala High Court
Kerala Soaps & Oils Ltd. vs V.T. Valsan And Anr. on 8 September, 1998
Equivalent citations: (1999)IILLJ77KER
JUDGMENT Mohammed, J.
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') is filed against the order of the Commissioner for Workmen's Compensation, Kozhikode in W.C.C. No. 37 of 1990. The opposite party before the Commissioner is the appellant before us and the 1st respondent herein was the applicant before the Commissioner. The above application has been filed under Section 22 of the Act by the 1st respondent claiming compensation for the personal injuries sustained by him on July 20, 1989 in an accident arising out of and in the course of his employment under the appellant. After the enquiry the Commissioner awarded a compensation or Rs. 92,516/- with 6% interest from the date of accident. The opposite party M/s. Kerala Soaps and Oils Ltd., Kozhikode being aggrieved by the said order, filed the present appeal.
2. On behalf of the appellant the counsel challenged the finding of the Commissioner that the 1st respondent was the 'workman' coming within the definition of the term contained in Section 2(1)(n) of the Act. Alternatively the counsel argued that the compensation had not been fixed by the Commissioner in accordance with the provisions contained in the Act even if the first respondent is found to be a 'workman'.
3. The Commissioner in the course of the order observed that the appellant did not produce any document showing the employment and payment of wages to workers engaged for plucking coconuts for the relevant period and therefore the appellant had suppressed certain documents which would show that the 1st respondent was employed under the appellant prior to June 20, 1989. From the documents produced by the appellant it would reveal that the 1st respondent had worked on October 17, 1986. The case of the appellant is that the 1st respondent was not regularly employed but at the same time the appellant failed to produce the vouchers said to have been issued to other persons who have been engaged as coconut climbers during the relevant year. The accident occurred on June 20, 1989. If the appellant had a case that he had employed other workers, the company account would definitely show vouchers obtained from other persons who had been engaged for this work. In the absence of such documents we can only concur with the conclusion arrived at by the Commissioner that the 1st respondent was regularly employed for plucking coconuts. When it is found that the 1st respondent has been regularly employed it ipso facto establishes that his employment is not of casual nature.
4. In this context it would be worthwhile to examine the definition of 'workman' contained in Section 2(1)(n) of the Act. The main para of the said provision provides that 'workman' means (1) any person other than a person whose employment is of a casual nature and (2) who is employed otherwise than for the purposes of the employer's trade or business. The above two requirements are conjuctive and not disjunctive. That means, when these two requirements are satisfied, such persons may come within the category of 'workman' under an employer. But at the same time if a person has been in casual employment and has been employed not for the purposes of employer's trade and business, he cannot be said to be a 'workman'. From the evidence available in this case, we have already found that the 1st respondent had been regularly employed for plucking coconuts and therefore the employment was not of casual nature.
5. The learned counsel for the appellant has brought to our notice a Division Bench decision of this Court in Thomas v. Babu 1995 (1) KLT 4. The Division Bench has analysed the facts of that case and came to the conclusion that no liability can be fastened on the appellant under the provisions of the Act. In order to come to this conclusion, the Division Bench has vividly explained the facts of that case as thus:
"The applicant was working for 12 other persons and would have to be held as a self-employed person not attached to anyone but plucking coconuts after climbing coconut trees of persons who send for him at the rate of one rupee per tree. The appellant and his wife are fully employed as clerk and school teacher respectively in Kanimangalam School and are not engaged in the trade or business of coconut products, There is no evidence of the relationship of the Employer and the Employee between the parties even of a casual character, when the applicant worked for 12 such persons atleast on payment of one rupee per tree. On facts he would have to be held as an independent self-employed tree- climber. These facts go a long way in reaching the inevitable conclusion that no liability can be fastened on the appellant under the Workmen's Compensation Act, 1923".
Therefore we are of the view that the above decision has been rendered by the Division Bench in view of the distinctive factual features of that case.
6. However, on the side of the 1st respondent a decision of another Division Bench of this Court in Kochu Velu v. Joseph (1980-II-LLJ-220) is brought to our notice. In that case a question arose whether coconut climber can be said to be employed casually. While dealing with this question, the Court observed:
"In other words we need only consider employment is of a nature which is not casual in character. If we find that the employment by way of climbing the coconut trees for the purpose of plucking nuts periodically is not casual at all that would give a complete answer in this case. The question whether the employment of the person concerned is casual may itself be not relevant. Even if it be relevant so far as this case is concerned it would not be difficult to answer, for on that aspect of the case there cannot be much of a controversy on facts. There is no case that the employment of the applicant is by chance or accident or that the appellant is occasionally employed. It is only because the employment is once in a period of fifty days or so that the contention that employment is casual is urged. Casualness, in the context in which it is used in the Act indicates employment by chance. When a person is being regularly employed periodically it cannot be said that he is employed casually.
We are of the view that the law has been correctly laid down in the above decision of the Division Bench.
7. A similar question involving the employment of a coconut climber arose before another Division Bench of this Court in Kochappan v. Krishnan (1987-II-LLJ-174). There the Division Bench has laid down certain guidelines to decide the question as thus:
"The employment would not be of a casual nature if there was such regularity or periodicity of employment as to indicate that there was such a degree of mutuality in their obligations as to regard one as the employee and the other as the employer. Was there any obligation, by express or implied contract, to employ the very same person during every season; or was there any statutory obligation to that effect. The question whether the employment was for the purposes of trade or business depends upon the extent of the land, the number of trees, the yield therefrom and other factors. It is a question of fact in each case whether the agricultural operation in which the person was employed was directed towards profit by trade or business or solely for domestic consumption."
Accordingly the Division Bench directed the Commissioner to determine the relevant facts in order to adjudicate the question raised by the parties. When the proved facts in the present case is tested within the premises of the principles laid down in the aforesaid decision, the first respondent would come within the definition of 'workman' who is entitled to get the benefits available under the provisions of the Act.
8. The second question that comes up for determination is whether the amount of compensation awarded by the Commissioner is just and proper in the circumstances of the case. In this context the learned counsel for the appellant has brought to our notice the Full Bench decision of this Court in New India Assurance Company Ltd. v. Sreedharan (1995-II-LLJ-362). After analysing the provisions contained in the Act, the Full Bench observed that the amount of compensation under Section 4 in the case where permanent partial disablement results from the injury has to be assessed in the case of non-scheduled injuries on the basis of such percentage of compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity as assessed by the qualified Medical Practitioner permanently caused by the injury. What has been pleaded by the appellant in this case is that as per Ext. A2 certificate the disability is only to the extent of 19%. At the same time the Commissioner has fixed the loss of earning capacity at 100%. This, according to the counsel is an erroneous method for fixing the compensation. In this case admittedly no certificate has been produced from the qualified medical practitioner assessing the loss of earning capacity. What is available is only the certificate of physical disability and not the loss of earning capacity. Both are distinct and separate and one cannot be taken for the other.
9. The question regarding the quantum of compensation has to be determined afresh by the Commissioner in view of the following observations contained in the Full Bench decision (supra):
"In a case where the applicant has produced only the medical certificate and has not produced any other evidence and when the Commissioner has not called for a second medical report or has not cared to send the applicant to be examined by a Medical Board, he cannot just ignore the medical practitioner's report and determine the compensation on the basis of his own assessment. The probative value of the report of the qualified medical practitioner will have to be considered on its own along with other evidence, if any."
In addition to the certificate to be obtained from the qualified medical practitioner assessing the percentage of loss of earning capacity, the 1st respondent is free to adduce any other evidence available with him to show that his actual loss of earning capacity is far more than 19% as disclosed by the disability certificate. That means, while deciding this question afresh, the Commissioner will have to give an opportunity to both sides to adduce their respective evidence in order to determine finally the compensation payable to the first respondent.
10. In view of what is said above, we direct the commissioner to decide the question as directed above expeditiously, at. any rate, within a period of three months from the date of receipt of a copy of the judgment. However, the counsel for the appellant submitted that the appellant had deposited the entire amount of compensation awarded by the Commissioner with interest and that a portion of the amount had been allowed to be disbursed to the 1st respondent. We make it clear that the first respondent shall not withdraw the remaining portion of the amount in deposit till the matter is finally decided as above. Both parties are directed to appear before the Commissioner on October 5, 1998. The appeal is disposed of as above.