IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 MFA.No. 55 of 2009(F) -------------------------- (WCC.18/2002 of COMMISSIONER FOR WORKMENS COMPENSATION, THIRUVANANTHAPURAM) .................... APPELLANT(S): ------------------ 1. VIMALA DAMODARAN, W/O. DAMODARAN, PUTHENPURA SWA MILL, (VIMALA INDUSTRIES), EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM. 2. DAMODARAN, PUTHENPURA SAW MILL (VIMALA INDUSTRIES), EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM. BY ADV. SRI.M.K.CHANDRAMOHANDAS RESPONDENT(S): -------------------- RADHAKRISHNAN, S/O. RAMAKRISHNAN, MOOVELIVADAKKETHIL, KODUMON, ADOOR TALUK, PATHANAMTHITTA. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... M.F.A.NO.55 OF 2009 ............................................. Dated this the 6th day of September, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thiruvanandapuram in W.C.C.No.18/2000. 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 an employee under the appellants and while working in the sawmill belonging to the second opposite party managed by the first opposite party, his hand got entangled resulting in amputation of finger. The Workmen's Compensation Commissioner awarded him compensation. 3. On the other hand, the opposite parties therein would contend that the applicant was never a workman and he had come there with certain wooden materials for the purpose of sawing. He is a carpenter by profession and without anybody's request he has helped in that process. His hand got entangled in the machine and thereby he sustained injuries. Since he is not an employee of the : 2 : M.F.A.NO.55 OF 2009 appellants, he is not entitled to claim compensation under the Workmen's Compensation Act. 4. The trial court found him to be the workman and awarded him a compensation of Rs.75,827/=. In the appeal in spite of notice he had not entered appearance, therefore the appellants alone is heard in the matter. The question of law that arises for determination in the appeal is whether applicant is the workman as defined under the provisions of the Workmen's Compensation Act specifically Section 2(n). 5. Point: It is true that appeal has to be entertained only on substantial questions of law. But a person being a workman or not is a mixed question of fact and law. If facts are misapplied, then the law will be decided wrongly and therefore the appeal has to be entertained. The applicant before the court below would depose before the court that he was an employee under the opposite parties. But, on the other hand, the opposite parties witnesses namely husband of the proprietress and another admitted workman would reveal that he is not a workman. The documentary evidence : 3 : M.F.A.NO.55 OF 2009 available in the matter in the form of attendance register and register of wages would not show that the applicant is an employee under the opposite parties. So, there is no documentary evidence to show that the applicant is an employee under the appellants. The two documents Exts.A5 and A6 would only reveal about membership of the applicant as a headload worker. One can understand that DW1 is an interested witness, but DW2 is a worker who belongs to the working class. Under ordinary circumstance he is not expected to depose falsehood before court. His evidence has been extracted by the Workmen's Compensation Commissioner and it will show that nowhere he has admitted that the applicant was a workman. According to him, he had come to the sawmill on 6.7.2001 and while the wooden pieces were worked in the mill, he had helped voluntarily and in that process he had sustained the injuries. In order to satisfy the definition of a workman, necessarily he would not be a casual worker and secondly he should be a person who is employed for wages. Unless there is payment of salary or wages, the relationship of master and servant or : 4 : M.F.A.NO.55 OF 2009 employer and employee does not arise at all and the materials available would not indicate anything to the effect that the applicant was ever employed for remuneration by the appellants herein. Just because an incident had taken place, it is certain that the sympathy is with the person injured, but that sympathy can be legalized only if there are materials which could be connected under the provisions of the Act or in other words, until and unless there is cogent evidence regarding the employer and employee relationship, the court cannot come to the conclusion with regard to the working capacity of the man. 6. Therefore evidence of DWs 1 and 2 coupled with the documentary evidence produced would show that the applicant before the Workmen's Compensation Commissioner was not an employee under the appellants. When that goes, it goes without saying that the applicant is not entitled to any compensation under the Workmen's Compensation Act. Since he is not entitled to any compensation, further question whether the amount awarded is correct or not does not arise for consideration as well. : 5 : M.F.A.NO.55 OF 2009 In the result, the appeal is allowed and the order passed by the Workmen's Compensation Commissioner is set aside and application before the Workmen's Compensation Commissioner is dismissed. M.N. KRISHNAN, JUDGE cl : 6 : M.F.A.NO.55 OF 2009 M.N. KRISHNAN, J. ........................................... A.S.NO.883 OF 1996 ............................................. 13th day of August, 2010. J U D G M E N T