IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 253 of 2009()
1. ALIBABA,PROPRIETOR,
... Petitioner
Vs
1. THE COMMISSIONER,
... Respondent
2. M.G.ANTOONY, S/O.M.A.GOERGE,
For Petitioner :SRI.T.I.DANIEL
For Respondent :SRI.JOSE TOM C. KANDATHIL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/09/2010
O R D E R
M.N. KRISHNAN, J.
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M.F.A..NO.253 OF 2009
.............................................
Dated this the 3rd day of September, 2010.
J U D G M E N T
This is an appeal preferred by the opposite party in
W.C.C.No.35/2002 against the order passed by the
Workmen’s Compensation Commissioner. The brief facts
necessary for the disposal of the appeal are stated as
follows:
2. It is the case of the applicant that he was a
carpenter working under the opposite party and on the
relevant day while he was doing the work, his hand got
entangled in the machine, as a result of which, the little
finger has to be amputated and phalanx of the ring finger
also had to be removed. Therefore he has claimed
compensation as an employee under the opposite
party/appellant.
3. On the other hand, the appellant/opposite party
would contend that there was no employer employee
relationship between the two and the incident took place
when he had come to the unit of the appellant with a prayer
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to use a machine for the purpose of cutting and while he was
doing his own work, on account of his negligence, there was
injury sustained by him and therefore, he cannot be asked to
pay compensation.
4. In the first round of litigation, the opposite party did
not seriously participate. Thereafter he moved a writ petition
before this Court and this Court rightly dismissed the writ
petition on the ground that there is a statutory remedy
available. Thereafter an appeal was preferred and this Court
granted an opportunity to the party to put forward his case.
The evidence available before the court is that of the
applicant, opposite party, one Baiju and James. According to
the applicant, while he was working under the opposite
party on the unfortunate day, the incident took place and he
was taken by the opposite party to the hospital and
thereafter there had been a dispute between the parties.
According to the claimant, he had started working with him
from 1998 onwards.
5. AW2 is one Baiju, who according to the claimant,
was a worker along with him and he had also deposed before
the court that the incident took place while the claimant
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was working as an employee under the opposite party. Of
course, the next witness – James is the brother-in-law of the
applicant and he had also deposed before the court that on
the relevant day the incident took place. As against this, the
oral evidence available is that of the opposite party. He
would depose that the applicant is a mobile carpenter and
since the opposite party had the machine for cutting and
as the claimant was doing his own private work, he had
approached him with promise to pay Rs.120/= per hour as
rent to use the machine and in that process he sustained the
injury. The evidence of the opposite party appears to be
quite artificial in nature. The incident has taken place in his
premises. He was running a small scale unit. Admittedly,
the small scale unit was dealing with furniture. It was during
the process of manufacture of furniture, the incident had
taken place. According to the opposite party, only his son
and wife were helping him. Certainly the wife cannot
work as a carpenter and evidence is to the effect that they
were only helping in the process of polishing and varnishing
the furniture. That appears to be more probable and
acceptable. According to the opposite party, while he was
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coming back from some other place he saw the applicant
standing on the gate with closed hand with the injuries and
thereafter he had taken him. Until and unless there was
some personal interest or involvement, he would not have
taken him to the hospital. The place of accident, ownership
of the place of accident, nature of work, avocation of the
applicant and nature of work done in the small scale unit of
the opposite party are all which will lead to the conclusion
that the applicant was working as a carpenter under the
opposite party and it was at that time the incident took
place and he had sustained the injuries. It has also to be
stated that when an appeal is preferred against the finding
of facts, the Workmen’s Compensation Act also restricts the
entertainment unless there is total mis-appreciation of
evidence. It has also to be stated that the Workmen’s
Compensation Commissioner has analysed the evidence and
had the opportunity to see the witnesses and had accepted
their version. It is always cautioned by the Apex Court that
while disturbing on the finding based on evidence of witness
examined before the trial court the appellate court shall be
slow and unless there is substantial mis-appreciation, it shall
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not be disturbed. But a reading of the entire evidence would
only reveal that what is stated by the applicant is true and
therefore I do not find any ground to interfere with the said
decision. So, I hold that the applicant was an employee
under the opposite party.
6. So far as the quantum is concerned, the applicant
had sustained injuries which resulted in amputation of the
little finger as well as amputation of the phalanx of the
ring finger. 12% is not excessive at all for the reason that
the schedule prescribes something more. Therefore, the
total loss of earning capacity assessed at 12% is also in
accordance with law. The amount of wage shown is also
reasonable and correct index is applied in awarding the
amount. Therefore on quantification of the compensation
also there is no mistake.
7. So far as the interest is concerned, in National
Insurance Company Ltd. v. Rekha (2008 A.C.J 886), this
Court had held that an employee is entitled to get 12%
interest. In the said decision, the Division Bench had
considered the Constitution Bench rulings of the Supreme
Court reported in Pratap Narain Singh Deo v. Shrinivas
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Sabata (AIR 1976 SC 222) and in the light of the same had
held that when there is a Constitution Bench decision and
subsequently Division Bench rulings of the Apex Court, the
decision of the Constitution Bench has to prevail. The same
has also been followed by another Division Bench of this
Court as well by the Himachal Predesh High Court in the
decision reported in New India Assurance Co. v. Budh
Ram (2009 (4) TAC 614). Therefore the award of interest
also is strictly in accordance with law.
8. Therefore, from these discussions I find that there is
nothing to interfere with the decision rendered by the
Workmen’s Compensation Commissioner that calls for
interference. Whatever amount is due under the award with
interest which has been paid has to be taken note of and if
there is any balance, it has to be paid and if there is any
excess payment, the claimant has to reimburse to the
employer namely the appellant.
The appeal fails and the same is dismissed.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
…………………………………….
A.S.NO.883 OF 1996
………………………………………
13th day of August, 2010.
J U D G M E N T