Kerala High Court
M/S.P.S.N.Automobiles (P) Limited vs Antony on 3 November, 2010
Author: K.M.Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 1ST DAY OF JULY 2013/10TH ASHADHA, 1935
MFA(W.C Act) No. 65 of 2011 ( )
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AGAINST THE ORDER IN WCC 62/2001 of WORKMEN'S COMPENSATION & DEPUTY
LABOUR COMMISSIONER,ERNAKULAM DATED 03-11-2010.
APPELLANT(S)/IST OPPOSITE PARTY:
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M/S.P.S.N.AUTOMOBILES (P) LIMITED,
4/389, 4-390, ELOOR ROAD
PREMIER JUNCTION, (N) KALAMASSERY, REPRESENTED BY ITS
MANAGING DIRECTOR.
BY ADVS.SRI.P.RAMAKRISHNAN
SRI.T.C.KRISHNA.
RESPONDENT(S)/APPLICANTS & 2ND OPPOSITE PARTY:
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1. ANTONY, S/O.OUSEPH, CHAKKANATT HOUSE,
WARD NO.XVI, AROOR P.O. PIN - 688 534.
2. ROSAMMA, W/O.ANTONY,
CHAKKANATT HOUSE, WARD NO.XVI,
AROOR P.O. PIN - 688 534.
3. THE NATIONAL INSURANCE COMPANY LIMITED,
BRANCH OFFICE, AMBIKA ARCADE,
M.G.ROAD, TRICHUR - 680 001.
R3 BY ADV. SRI.RAJAN P.KALIYATH.
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
01-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
amk
K.M.JOSEPH & A.HARIPRASAD, JJ.
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M.F.A(W.C Act )No.65 OF 2011
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Dated this the 1st day of July, 2013.
J U D G M E N T
K.M.Joseph, J.
The appellant is the first opposite party in a proceeding under Section 22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'). Respondents 1 and 2, the parents of one Sri.Jojo filed the application claiming compensation on the basis that during the course of their son's employment on 29-06-2001, he suffered severe injuries at the factory premises of the appellant. Though, he was taken to the hospital, he died. By the impugned order, the Commissioner has found that the 2nd opposite party namely the insurer of the appellant is not liable for the reason that the insurer is not liable under the terms of the policy for the liability to employees of contractors of the insurer. It is found that the deceased workman was an employee of the appellant's contractor. On the said reasoning, while finding that the compensation is to be paid, the appellant was to pay the same. It is aggrieved by the same that the appeal is filed.
M.F.A(W.C Act )No.65 OF 2011 2
2. We heard the learned counsel for the appellant and learned counsel for the 2nd opposite party, the insurer.
3. It is a common case that originally the Commissioner had directed the compensation to be paid by the insurer. The insurer appealed the said order vide M.F.A No.108/2004. This court allowed the appeal noting that the Commissioner has not considered the specific case of the insurer that employees engaged by the contractor were not covered by the policy. The court was of the view that the status of the employee as to whether he was engaged by a contractor or he was an employee of the appellant herein ought to have been enquired by the Commissioner. Accordingly, the Commissioner was directed to decide the matter afresh. According to the appellant R.P No.37/2009 was filed. The review petition was dismissed, but with liberty to the appellant to raise all such contentions before the Workmen's Compensation Commissioner. In fact, the court held that the court had not opined anything about the nature of the employment done by the deceased in the impugned judgment.
4. It is after the matter was remitted back by this court that M.F.A(W.C Act )No.65 OF 2011 3 the present impugned order is passed. The evidence which was adduced by the parties consisted of the oral testimony of the first claimant Ext.A1 is the copy of the F.I.R, Ext.A2 is the copy of the inquest report, Ext.A3 is the copy of scene mahazar, Ext.A4 is the copy of postmortem certificate and Ext.A5 is the copy of school certificate. Ext.A1 (must be D1) is the copy of the memo dated 1-6-2001 appointing the deceased worker. Ext.D2 purports to be the insurance policy. Ext.D3 is the copy of muster roll. Ext.D4 is a letter sent by the appellant to the insurer. Ext.D5 is the claim submitted to the insurer. Ext.D6 is a letter sent by the insurer asking certain documents and information. Ext.D7 purports to be addressed to the insurer furnishing details demanded by them. Ext.D8 is a minimum wages notification. Ext.D9 purports to be another letter from the insurance company. Ext.D10 is the Workmen's compensation policy.
5. Learned counsel for the appellant would make the following submissions before us. He would submit that Ext.D3 purports to be the muster roll maintained by the appellant in regard to M.F.A(W.C Act )No.65 OF 2011 4 its casual employees. The deceased worker figures as one of the workmen of the appellant going by the muster roll. Ext.D1 in fact is the appointment order. These documents have been ignored by the Commissioner. The Commissioner placed reliance on Ext.D4. As the contents of Ext.D4 appear to be very crucial, we extract the same.
" Sub : Policy under W.C Act -
No. 2001/8600004 valid till 22-4-02.
We regret to inform you that an accident occurred in our workshop at Kalamasserry on 29-06-01 at around 4-45 P.M. The acetylene cylinder used for gas welding exploded resulting in the death of one worker employed by our contractor.
Please advise us the statutory requirements to be fulfilled by us in this regard."
6. According to the learned counsel for the appellant, the letter is the product of a mistake on the part of the appellant. He would further point out that there are communications by the insurer which would indicate that the insurer was processing the claim made by the appellant as also the claimants. No objection was raised on the score that the deceased workman was an employee of the appellant's contractor. The Commissioner has not rendered any finding in respect of Ext.D3 which is maintained by the appellant. As regards M.F.A(W.C Act )No.65 OF 2011 5 the failure on the part of the appellant to produce the statement of account and day book which was ordered to be produced by the Commissioner, learned counsel for the appellant would point out that the appellant had actually filed an affidavit pointing out that these documents could not be traced out and undertaking that if it could be traced out it would be produced. He would also submit that the aforesaid documents would not prove the factum of payment to a particular employee.
7. Per contra, Sri.Rajan P.Kaliyath, learned counsel for the insurer would submit that no case at all is made out. He would submit that in Ext.A1 which is the copy of the first information report, the first information statement given itself would show that the case of the appellant cannot be accepted. In the F.I Statement given by the Manager of the appellant, it is stated that the deceased workman was an employee of the contractor. Still further he would point out that in Ext.A2 inquest report also there is a statement made by a co-worker in substance to the effect that the deceased workman was working under a contractor by name Joseph. As regards Ext.D3 M.F.A(W.C Act )No.65 OF 2011 6 muster roll, he would submit that could not have inspired the confidence of the Commissioner. It does not give any details. It does not show the month or date.
8. An appeal under Section 30 of the Act can be successfully premised only on the existence of a substantial question of law. A finding of fact even if, be erroneous unless it is perverse cannot be the basis for an appeal under Section 30. Learned counsel for the appellant no doubt pointed out non consideration of evidence would give raise to substantial question of law and the matter may be remitted back, so that the Commissioner can consider Exts.D1 and D3 and other documents and pass orders.
9. We have already referred to the contentions. We have also referred to the contents of the F.I.R made at the earliest point of time after the accident. The First Information Statement provided by none other than the Manager of the appellant would clearly show that the workman was working under a contractor. Further more crucially Ext.D3 admittedly issued by the managing director of the appellant, unambiguously states that the workman was employed by the M.F.A(W.C Act )No.65 OF 2011 7 contractor. It may be true that as such the Commissioner has not adverted to Exts.D1 or D3 and discarded the same or expressed his views on the said documents. As far as the other communication between the appellant, claimant and the insurer are concerned, it may be true that the insurer was seeking details and was processing the application. But we cannot take that conduct of the insurer to be sufficient to detract from its right to take a contention in conformity with relevant provisions of the contract of insurance. Undoubtedly, the insurer is not liable to pay compensation in respect of the employees of the appellant's contractor. Such a contention formed, the subject matter of the dispute in M.F.A No.108/2004 filed by the insurer. This court found merit in the contention of the insurer that the Commissioner is bound to give the finding as to whether the employee was working under a contractor or not. The matter was remitted back. Therefore, the only question was whether under the impugned order the Commissioner has rendered a finding which is vulnerable. In the nature of the contents of Exts.D1 and D3 and the overwhelming evidence presented through Exts.A1, A2 and D4, there M.F.A(W.C Act )No.65 OF 2011 8 will be no purpose served in remitting the matter back to the Commissioner to pass an order adverting to Exts.D1 and D3. We also note that as pointed out by the learned counsel for the insurer, Ext.D3 is bereft of details which would have lend it credence. As far as Ext.D1 is concerned it is an order of appointment as such. All these come about only much later than Exts.A1, A2 and D4.
In such circumstances, we are not inclined to interfere with the order passed by the Commissioner. The appeal is without merit and hence it is dismissed.
Sd/-
K.M.JOSEPH, JUDGE.
Sd/-
amk A.HARIPRASAD, JUDGE.
//True Copy//
P.A to Judge