Kerala High Court
Easow Easow vs Rajan Kallippara Thekkeveetil And Anr. on 23 March, 1998
Equivalent citations: (1999)ILLJ263KER
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER Sankaranarayanan, J.
1. This is an appeal against the award of the Workmen's Compensation Commissioner directing the appellant and the second respondent to pay a compensation of Rs. 20,000/- to the first respondent for an injury sustained in an accident on March 8, 1984. The first respondent herein filed a claim petition before the Commissioner for Workmen's Compensation against the appellant and the second respondent alleging that he was a workman employed under them and while engaged in rock blasting on March 8, 1984 he sustained an injury resulting in the loss of vision of right eye. He claimed that he was receiving a monthly wage of Rs. 780/-. He claimed Rs. 20,000/- as compensation from the opposite parties. There was a delay of 3 months and 20 clays in filing the claim petition. The claimant had filed an application to excuse the delay. It is seen from the records that without notice to the opposite parties the commissioner condoned the delay and accepted the claim on file and issued notice to respondents. The learned counsel for the appellant has challenged the procedure adopted by the Commissioner in condoning the delay without notice to the opposite party. However, it is taken on file as early as in 1986. There have been protracted proceeding, the case was once dismissed for default and was restored in file later and thereafter considered on merits. Hence the condonation of delay does not call for interference at this stage.
So this appeal is heard on merits.
2. The contention taken by the appellant is that the first respondent claimant was not an employee under him and so he is not liable for any compensation. The claim petition does not it-self give any details of the accident expect stating that the claimant sustained injury as a result of a piece of rock hitting his eye while he was engaged in rock blasting. Even the place of the accident is not mentioned. The petitioner has also not stated the relationship between the two respondents and how he happened to be the employee under both of them. The counter statement filed by the respondents also did not give any details except denying the employer employee relationship and any notice or information of the accident or the injury sustained by the claimant. Thus, neither the claim petition nor the counter statements do give any information useful for deciding the relationship between the parties. The claimant giving evidence as PW-1 on his side, stated that he was an employee under the respondents and they were his employers. He also stated that while engaged in work he sustained injury and as a result the vision in the right eye was lost. He further stated that he was receiving Rs. 30/- as daily wage and was employed for 26 days in a month. In cross- examination, he only stated that both the respondents engaged him for the work. Asked, whether he had a licence for blasting rocks, he stated that the respondents had one. He could not give even the details of the ownership of the property in which he was engaged for work. He knew the second respondent for about 9 years, (he was examined in 1990 only) and after the accident he was not engaged in any work. He stated that he met the second respondent about one year after the accident. He also stated that he met the first respondent appellant also after, return from treatment and conceded there was no attempt for reconciliation with the appellant. One Sreekumar examined as AW-2 on the side of the claimant, stated that he was a witness to the accident. He too stated that he was getting Rs. 780/- as monthly salary, but did not give any more details. Another witness Thankappan was also examined on the side of the claimant. He stated that the claimant was working under the respondents. He happened to see the accident while he was engaged in loading the rubble in lorries. His evidence also did not give any details about the employer employee relationship between the claimant and either of the respondents.
3. The appellant was examined as DW-1. He denied any connection with the claimant. He stated that Kollakuzhypara (stated to be the scene of the incident) belonged to him prior to 1981, but thereafter it was with his nephew George. He denied any information about the accident. The second respondent was examined as DW-2 and he also denied liability. One more witness examined on their side as DW-3, stated that at the time of the accident the second respondent was engaged in rock blasting till two weeks prior to the date of the accident. He also stated that the claimant was addicted to drugs. He stated that there was a connected criminal case and he gave evidence in that case to help the claimant.
4. Ext. A-2 is the copy of the first information statement in Crime No. 29/1984 of Koyap-puram Police Station. It showed that in connection with the incident on March 8, 1984 a case was registered against the claimant under Sections 286 and 337, IPC for rash and negligent handling of explosive substances. The first information statement is seen marked as Ext. A-3 and the wound certificate as Ext A-4 and the evidence of the second respondent in that case as Ext.A-5. In Ext.A-5 the second respondent has only stated that he was not a witness to the accident.
5. As seen above, the oral evidence does not give any clear picture as to the relationship between the claimant and the respondents. It is not possible to find an employer employee relationship between the claimant and the appellant on the basis of the evidence. The case diary statement of the present appellant recorded under Section 161, Cr.P.C. by the Sub Inspector of Police, Koyappuram in connection with Crime No. 29/1984 is seen produced and marked as Ext. A-7. Strictly speaking that document has not been properly proved. As the previous statement of the appellant, it could have been used only for contradicting his version in the witness box and it must have been put to him to be admitted in evidence and it could have been taken in evidence only if proved through the Sub Inspector of Police, but even accepting Ext. A-7 as evidence, the statement therein is only to the effect that 3 1/2 acres of rocky land in Sy. No. 155/1 -B Kuriyannur belonged to the appellant and he had given a contract to the second respondent for extracting rock at the rate of Rs. 7/- per lorry load and that he had come to know that there was an accident in which the claimant and another were injured. It is not possible to spell out an employer employee relationship between the claimant and the appellant from the statement also. The term employer is defined in Section 2(1)(e) of the Workmen's Compensation Act, 1923. There is nothing to indicate that the owner of a land is liable, as an employer, for any accident that may take place to a workman under a contractor, who is allowed to extract rocks on the above said basis. Thus it is not possible to uphold the finding of the Commissioner that the claimant was an employee under the appellant and find him liable to compensate for the injury. The order of the Commissioner as regards the appellant is liable to be set aside.
For the reasons stated above, this appeal is allowed. The order of the Workmen's Compensation Commissioner in W.C.C. No. 35/91 as against the appellant is set aside. The first respondent will be entitled to work out his remedies as against the second respondent. Parties to bear their own costs.