IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1699 of 1998(B)
1. P.GEETHA
... Petitioner
Vs
1. KOLLERI LAKSHMANAN
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.DEVAPRASANTH.P.J.
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/12/2009
O R D E R
M.N. KRISHNAN, J.
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M.F.A. NO. 1699 OF 1998
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Dated this the 14th day of December, 2009.
J U D G M E N T
This is an appeal preferred against the order of the
Workmen’s Compensation Commissioner, Kozhikode in
W.C.C.71/95. In an unfortunate incident the mother of AW1
namely Nadichi died and the contention is that she is an
employee of the opposite party and therefore entitled to
compensation under the Workmen’s Compensation Act. On
the contra the respondent would totally deny the employer-
employee relationship and requested the Court to dismiss the
petition.
2. Before the Compensation Commissioner AWs.1
and 2 and DWs.1 to 3 were examined. Exts.A1 to A5 and
RWs.1 to 5 and X1 were marked. On an analysis of the
entire materials the Workmen’s Compensation Commissioner
found against the applicant and dismissed the case. It is
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against that decision the appeal is preferred and the
substantial question of law raised in the memorandum of
appeal is whether a judgment written contrary to the
evidence on record is bad in law?
Point:
3. Heard the learned counsel for the appellant as well
as the respondent. One Nadichi died on 25.5.94 while a
heap of earth fell on her while removing earth and she
succumbed to the injuries while she was taken to the hospital
and the claimant is the daughter of the deceased. The bone
of contention is regarding the employer-employee
relationship. The question of employee-employer relationship
is an absolute question of fact and unless there is that much
of perversity or mis-application of mind it cannot be taken as
a substantial question of law so as to entertain an appeal u/s
30 of the Workmen’s Compensation Act. Since the death of
a person is attracted and that too a lady under the
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circumstances, I think it is fit to peruse the entire matter to
find out whether there is any mis-appreciation of evidence or
mis-application of law.
4. Admittedly this Nadichi was employed with one
brick company called M/s Chembra Bricks and Clay Works.
The register of wages relating to the establishment had been
produced before Court and marked as Ext.R4. It shows the
name of this lady as a permanent worker. Subsequently it is
seen that this lady had left from the said establishment and
she seized to have connection with the said firm. The
respondent has produced register of wages maintained by his
establishment as R2 and muster roll as R1 and that does not
show the name of this Nadichi as an employee in the
company. So admittedly the documents produced in this
case only negatives the case of an employee-employer
relationship.
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5. AW1 is the claimant herself. She has admitted in
evidence that her mother was working under M/S Chembra
Clay Products and she had left the company and according to
her later she had taken to this establishment and the
accident had taken place while she was working there. It can
be seen from her evidence that Nadichi was under poor
financial circumstances struggling to make both ends meet
and she had applied for a Governmental pension and she is
more than 60 years old. So this also indicates that she is not
an employee under any company. It has also come out in
her evidence that her mother was residing very near that
factory and that she used to walk through the premises of
the factory and the owner never used to object it. It is also
suggested that she has come to the factory to meet her old
friends or for collecting some money and unfortunately the
incident had taken place at that point of time.
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6. AW1 is one Geetha and her evidence does not
inspire confidence to hold that her mother has worked as an
employee under the respondent. AW2 is one Suseela. It is
her case that she had seen the incident. But in cross
examination she says that she understood the fact from
somebody on enquiry. According to the applicant the way to
the home of Nadichi is through the opposite party’s
establishment whereas AW2 has given an entirely different
version. So she is a witness who deposes contradictory
versions. Therefore her evidence also has to be viewed with
suspicion and it does not establish the factum that Nadichi is
employed in opposite party’s firm.
7. DW2 is the person who had given the FIR. He had
retracted from his statement that Nadichi was a worker
under the respondent therein. The owner as AW1 had also
denied the factum of employer-employee relationship.
There is no acceptable scrap of paper produced to establish
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the employer-employee relationship. The evidence tendered
in this case is insufficient.
From these discussions it can be seen that the there is
no sufficient evidence to show that the deceased was
working under the respondent’s firm and there were no
materials before the Court to establish the factum of
employer-employee relationship. In the circumstances, the
unavoidable result is to dismiss the case and I do so.
Therefore the appeal lacks merit and the same is dismissed.
M.N. KRISHNAN, JUDGE.
ul/-
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M.N. KRISHNAN, J.
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M.F.A. No. 1699 OF 1998
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J U D G M E N T
14th December, 2009