IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Ins.APP.No. 65 of 2008() ----------------------------- IC.17/2006 of EMPLOYEES' INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ---------------------- THE REGIONAL DIRECTOR, E.S.I.CORPORATION, THRISSUR - 20. BY ADV. MR.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT ------------------------ V.T.PADMANABHAN, PROPRIETOR, M/S.BINDU GARAGE, ARATTUVAZHI WARD, ALAPPUZHA. R1 BY ADV. MR.R.AZAD BABU THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 65 OF 2008 = = = = = = = = = = = = = = = Dated this the 5th day of January, 2010. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Alappuzha in I.C.17/06. The establishment moved an application before the E.I.Court for setting aside the order of coverage passed by the Corporation. The corporation strongly opposed it and after evidence the trial court held that there is no coverage and therefore allowed the case of the applicant. It is against that decision the Corporation has come up in appeal. The following questions are formulated as the substantial questions of law. (i) Is not all the findings of the E.I.Court are contrary to Section 2(9) and 2(12) of the ESI Act as stated in the grounds of appeal and it amount to arbitrary and perverse decision to attract interference? (ii) Is not the entire appreciation of evidence is improper in this case? INS.APPEAL NO. 65 OF 2008 -:2:- (iii) The evidentiary value of the admission of the employment strength as per Ext.D2 is properly appreciated in this case? Points 1 to 3: 2. Learned counsel for the Corporation and the establishment were heard. The establishment is a garage by name M/s Bindu Garage of which one V.T. Padmanabhan is a proprietor. The Employees Insurance Corporation's employees inspected the premises and found 9 persons as workers and two persons as contractors-piece rate. It is proved by a list attached along with the report and it is signed by Mr.Padmanabhan as the proprietor of M/s Bindu Garage. Of these Baiju V.P. and Biju V.P. are the children of Padmanabhan. Now it is contended that they were in the premises only for the purpose of learning work. But I find that some amount is shown against their name and if they are in receipt of remunerations then the question of employer-employee relationship may arise. It is a matter which requires consideration at the hands of the court below. INS.APPEAL NO. 65 OF 2008 -:3:- When the establishment is a proprietary concern the conclusion of the Insurance Court that they are partners of the firm cannot be accepted by any stretch of imagination. Similarly, two contractors-piece rate are indicated and when DW1 was examined he had stated before court that they are independent contractors. Whatever it may be, these two persons were found in the premises and it is for the owner to explain at least what they were doing and why their presence was found there at the time of inspection by the Employees of the Insurance Corporation. That is also a matter which has not been properly considered by the E.I.Court. Admittedly the concern is a workshop or garage. Generally when patch work is being done welding has to be done for completion of the work and that also is a matter which requires serious consideration for the reason that if no power is used even if there are 11 employees it will not be covered under the Act. So that is also a matter which requires detailed consideration. Therefore the order under challenge is set aside and the matter is remitted back to the Court INS.APPEAL NO. 65 OF 2008 -:4:- below for fresh consideration and for the said purpose both the parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. The E.I.Court is directed to issue notice to the parties fixing the date of appearance. M.N. KRISHNAN, JUDGE. ul/-