IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 MFA.No. 77 of 2007() -------------------- WCC.166/1998 of W.C.C.,ERNAKULAM .................... APPELLANT(S): RESPONDENT: ----------------------------------------------- M/S. TWO STAR PLYWOOD INDUSTRIES FIRM, INDUSTRIAL DEVELOPMENT AREA, ERUMATHALA, REPRESENTED BY MANAGING PARTNER, M.K.SAIDU MOHAMMED, S/O. KADER, MUNDETH HOUSE, MUDICAL. BY ADV. SRI.A.K.CHINNAN SMT.SUSAL A. CHINNAN RESPONDENT(S): APPLICANT: ----------------------------------------------- P.A. SUNITHA, PUTHENVEETTIL, LAKSHAMVEEDU COLONY, KODIKUTHUMALA, ASOKAPURAM, ALWAYE. ADV. SRI.P.RAMAKRISHNAN SRI.T.C.KRISHNA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MFA No.77 OF 2007 ===================== Dated this the 12th day of November 2008 JUDGMENT This appeal is preferred against the order of the Workmen's Compensation Commissioner in W.C.C.No.166 of 1998. The petitioner before the Workmen's Compensation Commissioner moved an application for compensation for the injuries alleged to have been sustained by her during the course of employment on 11th September, 1997 and on 2nd April, 1998. In the first accident, it is alleged that the petitioner's left hand was injured and in the second occasion her right hand was injured. In the first accident the first phalanx and half of the second phalanx were amputated. In the second accident, terminal phalanx of the right finger was amputated. The opposite party disputed the very employer-employee relationship and disputed everything and ultimately the Commissioner found that there was an employer-employee relationship and granted compensation of Rs.34,292/-. It is against that decision, the opposite party has come up in appeal. 2. Learned counsel for the appellant had formulated 4 substantial MFA 77/2007 -:2:- questions of law in this appeal, which reads as follows: “1. Whether the Commissioner for Workmen's Compensation has plenary power namely substitution of the employer under the level of correction of mistake. 2. Whether the Commissioner for Workmen's Compensation is empowered to entertain and proceed and decide a claim in respect of which notice of accident was not given and claim was not transferred to the substituted employer M/s.Two Star Plywood Industries, represented by its Managing Partner Sri.M.KSaidu Mohammed. 3. Whether the Commissioner for Workmen's Compensation had erred in deciding the employer of the claimant without any documentary evidence such as appointment order, ESI card, identity card, wage slips and such other statutory records, even the medical certificate does not show the name and address of the employer. The establishment came into existence after the alleged accident. 4.Whether the Commissioner for Workmen's Compensation a limited authority to decide the claim for compensation injury has jurisdiction in excess of the power and procedure prescribed in Section 23 of the Act”. 3. Let me first consider about the employer-employee relationship. The employer in this case is not an individual but an industry represented by its Managing Partner. The case of the applicant is that while she was employed in the said industry the accident took place and therefore the opposite party, viz., the industry by name “ Two Star Plywoods” is liable to pay compensation. On the other hand, the opposite party, the Managing Partner would contend that they got the industry only in the year 1999 and therefore there was no employer-employee relationship between the MFA 77/2007 -:3:- applicant and the said Managing Partner and so he is not liable to pay compensation. Ext.D1 is the proceedings of the General Manager of the District Industries Centre at Ernakulam. It would show that at least from 1996 there had been this industry called “Two Star Plywoods”. One of the Managing Partners at the inception, viz., Sri.Damodaran wanted to retire and on his retirement one Abdul Kareem was inducted as a Partner. Subsequently, one of the founder members of the partnership Sri.M.K.Saidu Mohammed, S/o.Kader also wanted to discontinue from the partnership and that was allowed. It was subsequently the present Managing Partner in the case, viz., M.K.Saidu Mohammed, S/o.Kader and M.K.Abdul Kareem, S/o.Kochunni got allotment of land. It can be seen that the partnership firm is constituted under the provisions of the Act, started industry and there was reconstitution of the partnership and when ultimately it was reconstituted in 1999, the partners were Sri.M.K.Saidu Mohammed, S/o.Kader and M.K.Abdul Kareem, S/o.Kochunni. It is also to be understood that the proceeding paper Ext.D1 would only reveal the reconstitution of the partnership without break. So the firm has been in existence with the change of partners and therefore it is a continuing business which means that the rights and liabilities also will continue with the persons in the helm of affairs at the relevant time. In the light of Ext.D1 MFA 77/2007 -:4:- I am not prepared to accept the contention of the appellant herein that the firm started only in the year 1999. 4.AW1 to AW3 were examined and their evidence has been appreciated by the court below and it is contended by the learned counsel for the appellant that nothing in the form of wage slip or other documents is produced by the applicant to establish that she was an employee. More solid documents such as wage register, attendance register, acquittance register, etc. will be only available with the firm and not with the employee. Therefore it was always easy to prove positive rather than negative. Such documents were never produced. Lastly learned counsel for the appellant would contend that Two Star Plywoods and Two Star Plywood Industries are two different firms. It is also a matter that could have been established by them. So from these materials, I find the factual finding that the employer-employee relationship does not in any way require correction and it is on correct appreciation of facts and therefore there cannot be any substantial question of law on that point. 5.The next is regarding disability and compensation. It is seen that the injuries sustained in the incidents are scheduled injuries which had been referred to in page 3 of the award with specific reference to item 29 of Part II of Schedule 1 of the Workmen's Compensation Act. I had also perused MFA 77/2007 -:5:- the said schedule and it also does not call for any interference. Interest is only granted from 2.4.1998 to 12.12.2002 and at that point of time it also does not call for interference. There is one more contention raised by the learned counsel regarding the absence of notice. It is true that Section 10 envisages a notice and such envisagement of notice is also to be liberally interpreted for the reason that when a person is employed in one industry and the injury takes place in the course of employment in an industry the very factum of taking place of the accident witnessed by the representative of the owner of the industry is a sufficient notice to them with respect to the accident and when they are in knowledge of the same one need not be too technical to hold a notice has to be given. A notice contemplated under Section 10(e) is only a notice of accident which means knowledge about the accident put to the employer. That is also there in this case and there is a specific averment in the petition also with respect to the same that the employer had been put to the knowledge of the same. Therefore that contention also does not loom large. Therefore the appeal lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/- MFA 77/2007 -:6:-