IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 MFA.No. 95 of 2004(A) --------------------- WCC.134/1994 of W.C.C.,ERNAKULAM .................... APPELLANT(S): PETITIONER: ------------------------- 1. OMANA RAJAPPAN, W/O. LATE RAJAPPAN IKKARAKUNNATH HOUSE, MURIYAMANGALAM, MAMALA. P.O. 2. REMYA RAJAPPAN, D/O. LATE RAJAPPAN DO. DO. 3. SEELAVATHY AMMA, W/O. LATE SHANKUNNI MENON, DO. DO. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): OPPOSITE PARTIES: -------------------------------- * 1. VARGHESE, KANJIRAKKATTU HOUSE (died) MURIAMANGALAM, MEMALA. P.O. 2. MARIAKUTTY, W/O. VARGHESE MURIYAMANGALAM, MAMALA. P.O. ADDL. RESPONDENTS ADDL. R3: THANKAMMA, W/O. PAULOSE, IYKKARAVELIL HOUSE, CHOTTANIKKARA ADDL. R4: MOLLY, W/O. GEORGE, VENGASSERIL HOUSE, CHITTAPUZHA -:2:- ADDL. R5 OMANA, W/O. ABRAHAM, AREACKAL, THIRUVAMKULAM, KESAVANPADY ADDL. R6: MAGY, W/O. JOSE, VIRIPPUKALAYIL HOUSE, KARINGACHIRA ADDL. R7: GEORGE, AGE NOT KNOWN, FATHER'S NAME NOT KNOWN KALARICKAPARAMPIL HOUSE, TRIPUNITHURA ADDL. R8: SIJULAL GEORGE, S/O. LATE LEELA, THOTTANATHU HOUSE, MAIN ROAD, TRIPUNITHURA ADDL. R9 SIJULAL GEORGE, KALARICKAPARAMPIL, TRIPUNITHURA ( ADDL. RESPONDENTS 3-9 IMPLEADED AS THE LRS OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 7-1-2008 IN I.A. 2237 OF 2006) ADVS. SRI.A.V.XAVIER AND ADV. SRI.JOLLY JOHN FOR RESPONDENTS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 9-7-2009 , THE COURT ON 15/07/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * M.F.A. (W.C.C) NO. 95 OF 2004 * * * * * * * * * * * * * * * * * * Dated: 15th day of July 2009 JUDGMENT The applicants in W.C.C. No. 134 of 1994 on the file of the Court of the Commissioner for Workmen's Compensation (hereinafter referred to as the “Court) Ernakulam are the appellants in this appeal filed under Sec. 30 of the Workmens' compensation Act, 1923 (hereinafter referred to “the Act”). The above application was filed claiming compensation for the death of one Rajappan who was the husband of the first applicant and father of applicants 2 and 3. As per the common order dated 5- 10-1999 the Commissioner for Workmens' Compensation dismissed the aforesaid application along with W.C.C. No. 135 of 1994 filed by the legal heirs of one Paulose who was also killed in the same accident. 2. The case of the applicants in the court below can be M.F.A. (W.C.C.) No.95 of 2004 -:2:- summarised as follows: - The respondents who are husband and wife are respectively the licensee and owner of a granite quarry at Mamala near Muriyamangalam. On 28-1-1994 while deceased Rajappan along with one Paulose was doing the work of filling gunpowder in the holes for blasting rocks in the granite quarry, rocks from above fell over them and as a result of the injuries sustained by them both of them died on the spot. The above accident arose out of and in the course of their employment in the quarry as the workmen of the respondents who were conducting the quarry on partnership basis. Deceased Rajappan was aged 35 years. His monthly income was Rs. 2,100/-, The applicants who are the legal representatives of the said Rajappan are entitled to get a sum of Rs. 78,824/- by way of compensation as per Rules. Hence, the application. 3. The respondents opposed the application contending inter alia as follows:- M.F.A. (W.C.C.) No.95 of 2004 -:3:- The application is not maintainable. There is no employer- employee relationship between deceased Rajappan and these respondents. Deceased Rajappan and deceased Paulose were partners along with the first respondent K.T. Varghese and one K.V. Varghese in the business of running the quarry. The 2 nd respondent is not a necessary party to the proceedings. Since the deceased persons along with the first respondent and K.V. Varghese were employers of the workers employed in the quarry the application is not maintainable. The partners including the deceased persons who worked in the quarry used to take some amount as their remuneration besides the share of profits. No notice was served on the respondents. The claim is bogus and fictitious. It is liable to be dismissed. 4.The court below framed the following issues for trial:- i) Whether the deceased were workmen as defined in the Act ? ii) Whether the deceased sustained personal injury in an accident arising out of and during the course of their M.F.A. (W.C.C.) No.95 of 2004 -:4:- employment which resulted in their death ? iii)Whether the applicants are entitled to the compensation claimed ? iv)Whether the opposite parties are liable for the compensation, if any ? 5. On the side of the applicants five witnesses were examined as Aws 1 to 4 and Exts.A1 to A4 were got marked. On the side of the respondents four witnesses were examined as Ows 1 to 4 and Ext.O1 was marked. 6. The Court below, after trial, as per the impugned order dated 5-10-1999 held issue Nos. 1 and 2 against the applicants and dismissed W.C.C. No. 134 of 1994 without recording a finding on issue Nos. 3 and 4. Hence, this appeal by the applicants. 7. I heard Adv. Sri. A.T. Anil Kumar, the learned counsel appearing for the appellants and Adv. Sri. A.V. Xavier the learned counsel appearing for the respondents. M.F.A. (W.C.C.) No.95 of 2004 -:5:- 8. The learned counsel appearing for the respondents made the following submissions before me in support of the impugned order:- An applicant claiming compensation under Sec. 22 of the Act should prove employer-employee relationship between the applicant and the opposite party. The first applicant who is the widow of deceased Rajappan was examined as A.W.1. She would say that her husband was filling the holes with explosives. What was the necessity to fill the holes for the blasting operations to be carried on the next day ? She has admitted that the working time in the quarry was from 8 a.m. To 5 .30 p.m. and that accident arose after 5.30 p.m. According to her the monthly income of her husband was Rs. 2,500/-. But Ext.A3 wages slip for the week commencing from 23-3-1992 and ending on 28-3- 1992 shows that his wages was less than Rs. 75 per day. The case of the respondents is that until the Onam in the year 1993 deceased Rajappan and Paulose were also workers in the quarry M.F.A. (W.C.C.) No.95 of 2004 -:6:- but after Onam in that year both of them were inducted as partners along with the first respondent K.T. Varghese and one K.V. Varghese who was examined as OW4. No wage slip pertaining to deceased Rajappan has been produced for the period after September 1993. The widow of Paulose was examined as AW2. She was an applicant in the connected case filed as W.C.C. 135 of 1994. She is thus an interested witness. She has also admitted that usually the work in the quarry will be over at 5.30 p.m. and the accident happened after 5.30 p.m. According to her also the two deceased persons were filling gun power to enable loading of granite stones on the next day. The brother of deceased Rajappan was examined as AW3. He is also a worker in the quarry. He also admitted that the usual working time in the quarry is from 8 a.m. to 5 p.m. This witness frankly confessed that all the workers in the quarry had left the place before the accident. The two deceased persons were alone were in the quarry at the time of occurrence. If the two deceased were M.F.A. (W.C.C.) No.95 of 2004 -:7:- also workers in the quarry then they would have left the quarry along with the other workers. The very fact that they remained there probabilises the contention of the respondents that they were partners. AW3 would say that it was after giving instructions to the deceased persons to loosen granite stones that the first respondent K.T. Varghese left the quarry at 5 p.m. This witness has admitted that the INTUC Union had preferred a complaint against the employer for non-issue of wage slips. The said complaint has not been got summononed. If that complaint was produced, it would have shown that the names of the two deceased persons did not figure among the workers in the quarry. A.W.3 has confessed that he did not make any claim through the CITU Union which is very powerful in that quarry. Thus, no trade union had made any claim on behalf of the deceased persons. If the deceased were in that quarry, the trade unions would not have kept quiet without espousing the cause of the legal heirs of the deceased. AW4 Rajappan is an office bearer M.F.A. (W.C.C.) No.95 of 2004 -:8:- of the INTUC. He was the Secretary of the said Union from 1992 to 1997. He does not know whether deceased Rajappan was a union member. He also admitted that the working time in the quarry was from 8 a.m. To 5 p.m. He would say that there was overtime work. According to him the first respondent was approached through his Union but nothing transpired. He has confessed that his union did not collect funds and pay to the bereaved family and that usually such donations are given. He was free to confess that both before and after occurrence in this case there had been similar gestures of contributions given to the members of the bereaved family. AW5 is a worker in the quarry of the first respondent. According to him, himself and deceased Rajappan were members of the INTUC. He, however, admitted during cross examination that all Unions used to co-operate in the gesture of any of the Unions taking up the cause of the victims of accidents. The first respondent was examined as O.W.1. He has deposed that after the Onam in the year 1993, both the M.F.A. (W.C.C.) No.95 of 2004 -:9:- deceased persons who were workers in the quarry were taken as partners of the quarry along with himself and OW4. His statement that besides the two deceased persons, there were 8 other workers in the quarry does not mean that the deceased were workers. It only refers to the position prior to the Onam in the year 1993. Ows 2 and 3 who are independent witnesses have corroborated the version of OW1. Since the partnership is not evidenced by any deed of partnership, the respondents examined O.W4 the other partner who has spoken in terms of the case of the respondents. Ext.O1 newspaper report in the Deshabhimani daily also confirms the fact that both deceased Rajappan and Paulose were partners of the quarry. In the face of such evidence, the court below was fully justified in holding that there was no employer-employee relationship between the deceased persons and the respondents. The finding recorded by the court below is a pure finding of fact from which no substantial question of law arises. The very fact that the legal representatives of deceased M.F.A. (W.C.C.) No.95 of 2004 -:10:- Paulose have not filed any appeal from the order of the court below will indicate that they have accepted the verdict of the court. 8. I am afraid that I find myself unable to agree with the above submissions on behalf of the respondents. OW1 who is none other than the first respondent cannot be expected to say anything different from his own case. In spite of that to a question put to him in cross -examination as to how many workers were there in the quarry in September 1993, he replied that over and above the deceased persons there were 5 or six workers. This is precisely what he says “1993 സപ ബറ ല എത ജല കര ഉണയ രന ? (Q) ഇവരര ക%ര 5-6 രഴ ലള കള (A)”. Ows 2 and 3 are not independent witnesses. O.W.2 has confessed that he was conducting a quarry belonging to the 2 nd respondent Mariyamma who is the wife of the Ist respondent, K.T. Varghese. This witness who was rendering lip service to the respondents by saying that the quarry was being M.F.A. (W.C.C.) No.95 of 2004 -:11:- run on partnership by including deceased Rajappan and Paulose as partners. He confessed that he has not seen any document evidencing the partnership. O.w.3 is also not a disinterested witness. He who claims to be residing 100 mts. away from the quarry confessed that his son Reji is running a quarry in the property belonging to the 2 nd respondent Mariyamma. He further admitted that he was residing in a property which was purchased from the first respondent. He had to confess that both Rajappan and Paulose were among the workers in the quarry. He has also not seen any document regarding the alleged partnership business. OW4 is a person who was put forward as one of the four partners of the partnership business. He confessed that he is related to the first respondent through his mother and admitted that he was looking after the accounts in the quarry belonging to the 2 nd respondent Mariyamma. 9. It is true that the witnesses for the applicants admitted that the occurrence took place after 5.30 p.m. and that the M.F.A. (W.C.C.) No.95 of 2004 -:12:- working time in the quarry was from 8 a.m. to 5 p.m. or from 8 a.m. To 5.30 p.m. Aws 1 to 3 and 5 have all deposed that Rajappan and Paulose who were killed in the accident were working in the quarry by filling explosives in the holes drilled in the rock for the purpose of blasting the same and producing granite boulders to be loaded on the next day. AW5 has no doubt deposed that himself and deceased Rajappan were INTUC members. It is true that AW4 who was the Secretary of INTUC from 1992 – 1997 does not know whether Rajappan was a union member and has admitted that his Union did not collect funds and pay to the bereaved family of Rajappan and Paulose. But from that alone it does not follow that the deceased were not workers in that quarry. Likewise the failure to summon the complaint alleged to have been made by INTUC against the respondents for non-issue of wage slips cannot be decisive of the question as to whether the deceased were workers or partners in the quarry on 28-1-1994 when the unfortunate mishap took M.F.A. (W.C.C.) No.95 of 2004 -:13:- place. In fact, AW4 was not cross-examined with regard to the said complaint. 10. The fact that deceased Rajappan and Paulose were workers in the quarry of which the 2 nd respondent Mariyamma is the owner and her husband the first respondent K.T. Varghese is the licensee is a fact which is admitted even by the respondents. But their specific defence is that after the Onam of the year 1993 those two workers were inducted as partners and the quarry was run on a partnership business with the first respondent K.T. Varghese, the two deceased workers and OW4 K.V. Varghese as partners. To put it differently, it is the first respondent who contends that deceased Rajappan and Paulose who were admittedly workers in the quarry ceased to be so from September 1993 onwards. So, the burden was on the respondent to prove the above change in the status of the deceased who were workers in the quarry. Unless and until the respondents are able to show by convincing evidence that the status of the two workers M.F.A. (W.C.C.) No.95 of 2004 -:14:- changed from that of the employee to that of employer, it can legitimately be presumed that they continue to be employees as before . It is well settled that the state of things admittedly existing can be presumed to continue unless and until proved otherwise by convincing evidence. There is no acceptable evidence in this case to show that the two deceased persons had ceased to be workers in that quarry. Ext.O1 is only a newspaper cutting allegedly from the Desabhimani daily dated 29-1-1994 to the effect that the deceased persons who were killed in an accident occurring in the quarry belonging to the respondents were partners . The whole newspaper has not been produced. A paper cutting is not a piece of evidence which can be received in evidence. Even the whole newspaper would not be admissible in evidence unless the reporter concerned is examined before Court and he gives evidence disclosing the source of his information. As against this, there was the credible testimony of Aws 1 to 3 and 5 who have deposed in impeachable M.F.A. (W.C.C.) No.95 of 2004 -:15:- terms that deceased Rajappan was a worker in the quarry in question. The conclusion reached by the court below is by misreading and misconstruing the oral evidence in the case and by relying on inadmissible evidence. Failure to draw the right inference on the evidence gives rise to an error of law. A finding which no reasonable person, well instructed in law would arrive at on the evidence is a perverse finding which cannot be supported. I, therefore, dislodge the findings recorded by the court below on issue Nos. 1 and 2 and hold that deceased Rajappan who was admittedly an employee in the quarry in question continued to be so even on 28-1-1994 when he met with the accident that took place in the quarry where he was employed . I further hold that Rajappan sustained injuries in the accident arising out of and during the course of his employment under the first respondent who is admittedly the licensee in respect of the quarry. Since the court below had refrained from recording findings on issue Nos. 3 and 4, this court is left with M.F.A. (W.C.C.) No.95 of 2004 -:16:- no option except to remand the case to the court below for recording findings on issue Nos. 3 and 4. In the result, this appeal is allowed and the substantial questions of law raised are answered in favour of the appellants and the impugned order is set aside and the matter is remitted to the court below for recording findings on issue Nos. 3 and 4 and for disposing of W.C.C. No. 134 of 1994 accordingly. There shall be no order as to costs. Dated this the 15 th day of July, 2009. V. RAMKUMAR, (JUDGE) ani.