IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 MFA.No. 264 of 2009() --------------------- APPELLANT/OPPOSITE PARTY ---------------------------- D.SANTHOSHKUMAR,S/O.SADANANDAN, AGED 32 YEARS,SAJI BHAVAN, ERUMAKKUZHI,NOORANAD,ALAPPUZHA. BY ADV. SRI.T.I.DANIEL RESPONDENTS/APPLICANT ------------------------ 1. SRI.V.R.NAKULAN, KANDATHIL VEEDU,L.S.POST, NOORANAD,ALAPPUZHA. 2. THE COMMISSIONER FOR WORKMEN COMPENSATION AND DEPUTY LABOUR COMMISSIONER,KOLLAM. ADV. SRI.G.GOPAKUMAR (CHERTHALA) FOR R1 ADV.SRI.R.GITHESH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX TO M.F.A.No.264 of 2009 PETITIONER'S EXHIBITS: ANNEXURE NO.1: A PHOTOCOPY OF THE LETTER DATED 18/5/2003 FROM THE GENERAL SECRETARY, TODDY WORKERS UNION (CITU) MAVELIKKARA. ANNEXURE NO.2: A PHOTOCOPY OF THE REPLY NOTICE ISSUED BY THE APPELLANT TO THE 1ST RESPONDENT DATED26/6/2003. ANNEXURE NO.3: A PHOTOCOPY OF THE ORDER OF THE WELFARE FUND INSPECTOR, THIRUVALLA DATED 15/3/2005. ANNEXURE NO.4: A PHOTO COPY OF THE INTIMATION LETTER DATED 9TH DECEMBER 2008. ANNEXURE NO.5: A PHOTO COPY OF THE POSTAL COVER IN WHICH THE INTIMATION LETTER WAS DISPATCHED IN THE NAME OF THE APPELLANT BY THE REGIONAL JOINT LABOUR COMMISSIONER, KOLLAM. ANNEXURE NO.6: A CERTIFIED COPY OF THE JUDGMENT IN WCC NO.8/03 DATED 9TH DECEMBER, 2008. ANNEXURE NO.7: PHOTOCOPY OF THE DEMAND DRAFT DATED 13/10/2009. ANNEXURE NO.7(a): PHOTO COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER ALONG WITH THE DEMAND DRAFT. RESPONDENT'S EXHIBITS: NIL // True Copy// PA to Judge K.M.JOSEPH & A.M.SHAFFIQUE, JJ. * * * * * * * * * * * * * M.F.A.No.264 of 2009 ---------------------------------------- Dated this the 11th day of November 2011 J U D G M E N T K.M.JOSEPH,J The appellant is the opposite party in proceedings under Section 22 of the Workmen Compensation Act. The 1st respondent/applicant made the following case inter alia before the Commissioner. He was a tapper employee by the appellant. On 25/4/2003, while he was climbing a coconut tree for tapping at Manakkatt Muri, Mavelikkara, he fell down and sustained serious injuries and accordingly he claimed compensation and a sum of Rs.2,87,640/- with interest at the rate of 12% per annum with effect from 25/4/2003 within one month was allowed as compensation to the appellant. 2. Before the commissioner, the respondent/claimant produced Exts.A1 to A21. He examined himself as AW1. The appellant, though he had received notice and had engaged a counsel, did not however, further participate in the proceedings. The Commissioner noted that the applicant abstained from proceedings though he was served and he was declared ex parte. M.F.A.No.264 of 2010 2 3. We have heard the learned counsel for the appellant and the learned counsel for the 1st respondent. 4. The learned counsel for the appellant would submit that the claimant was not his workman. According to him, it is so happened that though he engaged a counsel, the counsel did not participate in the proceedings. According to him, an opportunity should also be given to him. More importantly it is pointed out that even with documents produced before the Commissioner, the case of the applicant workman cannot be accepted. He points out that the Commissioner has found that the documents Exts.A6 to A16 would show that he is the toddy tapper in toddy shop No.20. According to the appellant, he was only running toddy shop No.10 and he never had occasion to run toddy shop No.20. 5. Per contra, the learned counsel for the workman would point out that it may be true that in some of the documents it is shown as shop No.20. But it is a mistake and actually the respondent workman was working in toddy shop No.10. M.F.A.No.264 of 2010 3 6. We notice that in the application filed by the workmen, it is not mentioned that he was working in toddy shop No.10 or 20. It would appear that except in one document, in all other documents it is shown that he was working in toddy shop No.20. However, we note that Ext.A16 relates to toddy shop No.10. The Commissioner has found that Exts.A8 to A16 proved that he was the toddy tapper in toddy shop No.20. Therefore, the documents produced themselves would show that all relates to T.S.No.20 except Ext.A16. The case of the workmen would appear to be that he was working in T.S.No.10. To probabilise his case, the appellant has produced before this Court Annexure 1 wherein it is indicated that the respondent workman was working in T.S.No.10. No doubt, this was not produced before the Commissioner. We feel that the appellant should be given opportunity to contest the matter before the Commissioner, in the circumstances of this case. 7. Accordingly, we set aside the impugned order. The matter is remitted back. Parties to appear before the Commissioner on 09/12/2011. The Commissioner will proceed to dispose of the matter within a period of three months from M.F.A.No.264 of 2010 4 09/12/2011. Parties may adduce evidence, if any, as they are advised to. We also permit the 1st respondent to withdraw a sum of Rs.40,000/- out of the amount deposited by the appellant. It will also be open to the appellant to seek permission to file a written objection before the Commissioner. (K.M.JOSEPH, JUDGE) (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge M.F.A.No.264 of 2010 5 M.F.A.No.264 of 2010 6 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010