IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 MFA.No. 182 of 2004 ----------------------------- WCC.NO.64/1987 OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION,ERNAKULAM. .................... APPELLANT/ APPLICANTS: --------------------------------------- 1. MANIAN KUNJOL, ELUPARAMBIL, KUMARAPURAM, PALLIKKARA, ERNAKULAM DISTRICT. 2. KARTHYAYANI, ELUPARAMBIL, KUMARAPURAM, PALLIKKARA, ERNAKULAM DISTRICT. 3. JAYABHARATHY, DO. DO. 4. SATHI, DO. DO. 5. YAMUNA, DO. DO. 6. MANILAL, DO. DO. 7. SELVARAJAN, DO. DO. BY ADV. SRI.B.GOPAKUMAR, SMT.CHINCY GOPAKUMAR, SRI.ASWIN GOPAKUMAR, SRI.ANWIN GOPAKUMAR. RESPONDENTS/ OPPOSITE PARTIES: ------------------------------------------------------ 1. T.J.MATHAI, CONTRACTOR, THEKKANETHU HOUSE, ERNAKULAM, KOCHI-16. 2. BABY S/O. OUSEPH, CHALAPURATHU VEEDU, KULAYETTIKKARA VILLAGE. BY ADV. SRI.P.M.SEBASTIAN - R1, ADV. SMT.K.SHANTHI - R1. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.182 of 2004 ------------------------------------- Dated 23rd May, 2008 JUDGMENT Koshy,J . This appeal is filed by the applicants who approached the Commissioner for Workmen's Compensation for the death of wife of the first applicant and mother of applicants 2 to 7. Earlier an order was passed rejecting the application as applicants did not substantiate their claim by adducing evidence. In appeal by judgment dated 7th February, 2003 the matter was remanded by this court allowing the parties to adduce further evidence. Thereafter, evidence was adduced. It is stated that two witnesses were examined on the side of the applicants and four witnesses were examined on the side of opposite sides, but, again the claim was rejected by the Commissioner. Commissioner's order mainly relied on F.I.R. (Ext.O1) and contents of the F.I. Statement. Neither the evidence adduced by the applicants nor the opposite parties were discussed in the order. In fact, operative portion of the order states as follows: “Even after remand no evidence was adduced by any of the parties to establish that the deceased will come under the purview of the Workmen's Compensation Act. Hence the deceased was not workman under the Workmen's Compensation Act and the claim petition is dismissed.” MFA.182/2004 2 Commissioner is bound to discuss the evidence and come to a finding. It is the case of the applicants that during the cross examination of AW2 as well as examination of OW2 it has come out in evidence that deceased was a workman as defined under the Workmen's Compensation Act and the accident occurred during the course of employment. We are not going into those aspects as it is a matter to be decided by the Commissioner on evidence. The order of the Commissioner is completely perverse as evidence adduced in this case was not discussed. Hence, we set aside the order and remand the matter for passing fresh order after hearing the parties. Parties shall appear before the Commissioner for Workmen's Compensation on 14.07.2008. Commissioner shall decide the matter as expeditiously as possible and the fresh order should contain detailed discussion of the evidence adduced in this case. Order should be passed before 30th October, 2008 and a copy of the order should be forwarded to this Court. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks MFA.182/2004 3 J.B.KOSHY & K.HEMA, JJ. -------------------------------------- I.A.No.175 of 2008 in M.F.A.No.182 of 2004 ------------------------------------- Dated 18th January, 2008 ORDER Koshy,J . Notice issued to second respondent was returned as unclaimed and this petition is filed to declare the service as complete. Notice was sent in the correct address. It is further stated that notice given in the same address was served and he was represented before the Commissioner for Workmen's Compensation and, therefore, it should be treated as served. We note that he was represented by Sri.Youseff & Aysha, Lawyers, Kochi who are appearing in this court also. Therefore, we direct the petitioners to serve a copy of the appeal memorandum and a copy of the award to M/s.Youseff and Aysha, Lawyers also. Copies should be served within two days. I.A. is disposed of. Post the appeal for hearing. J.B.KOSHY JUDGE K.HEMA JUDGE MFA.182/2004 4 tks