IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 MFA.No. 1699 of 1998(B) ----------------------- WCC.71/1995 of W.C.C.,KOZHIKODE .................... APPELLANT(S)/APPLICANT: -------------------------------- P. GEETHA, KARUTHEDATH PARAYI, P.O. CHELEMBRA, MALAPPURAM DISTRICT. BY ADV. SRI.V.V.SURENDRAN RESPONDENT(S)/OPPOSITE PARTY: ------------------------------------------ KOLLERI LAKSHMANAN, PRABHA BRICKS AND CLAY PRODUCTS, P.O. AYIKKARAPPADI, MALAPPURAM DISTRICT. ADV. SRI.DEVAPRASANTH.P.J. FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 1699 OF 1998 = = = = = = = = = = = = = = = Dated this the 14th day of December, 2009. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Kozhikode in W.C.C.71/95. In an unfortunate incident the mother of AW1 namely Nadichi died and the contention is that she is an employee of the opposite party and therefore entitled to compensation under the Workmen's Compensation Act. On the contra the respondent would totally deny the employer- employee relationship and requested the Court to dismiss the petition. 2. Before the Compensation Commissioner AWs.1 and 2 and DWs.1 to 3 were examined. Exts.A1 to A5 and RWs.1 to 5 and X1 were marked. On an analysis of the entire materials the Workmen's Compensation Commissioner found against the applicant and dismissed the case. It is M.F.A.. 1699 OF 1998 -:2:- against that decision the appeal is preferred and the substantial question of law raised in the memorandum of appeal is whether a judgment written contrary to the evidence on record is bad in law? Point: 3. Heard the learned counsel for the appellant as well as the respondent. One Nadichi died on 25.5.94 while a heap of earth fell on her while removing earth and she succumbed to the injuries while she was taken to the hospital and the claimant is the daughter of the deceased. The bone of contention is regarding the employer-employee relationship. The question of employee-employer relationship is an absolute question of fact and unless there is that much of perversity or mis-application of mind it cannot be taken as a substantial question of law so as to entertain an appeal u/s 30 of the Workmen's Compensation Act. Since the death of a person is attracted and that too a lady under the M.F.A.. 1699 OF 1998 -:3:- circumstances, I think it is fit to peruse the entire matter to find out whether there is any mis-appreciation of evidence or mis-application of law. 4. Admittedly this Nadichi was employed with one brick company called M/s Chembra Bricks and Clay Works. The register of wages relating to the establishment had been produced before Court and marked as Ext.R4. It shows the name of this lady as a permanent worker. Subsequently it is seen that this lady had left from the said establishment and she seized to have connection with the said firm. The respondent has produced register of wages maintained by his establishment as R2 and muster roll as R1 and that does not show the name of this Nadichi as an employee in the company. So admittedly the documents produced in this case only negatives the case of an employee-employer relationship. M.F.A.. 1699 OF 1998 -:4:- 5. AW1 is the claimant herself. She has admitted in evidence that her mother was working under M/S Chembra Clay Products and she had left the company and according to her later she had taken to this establishment and the accident had taken place while she was working there. It can be seen from her evidence that Nadichi was under poor financial circumstances struggling to make both ends meet and she had applied for a Governmental pension and she is more than 60 years old. So this also indicates that she is not an employee under any company. It has also come out in her evidence that her mother was residing very near that factory and that she used to walk through the premises of the factory and the owner never used to object it. It is also suggested that she has come to the factory to meet her old friends or for collecting some money and unfortunately the incident had taken place at that point of time. M.F.A.. 1699 OF 1998 -:5:- 6. AW1 is one Geetha and her evidence does not inspire confidence to hold that her mother has worked as an employee under the respondent. AW2 is one Suseela. It is her case that she had seen the incident. But in cross examination she says that she understood the fact from somebody on enquiry. According to the applicant the way to the home of Nadichi is through the opposite party's establishment whereas AW2 has given an entirely different version. So she is a witness who deposes contradictory versions. Therefore her evidence also has to be viewed with suspicion and it does not establish the factum that Nadichi is employed in opposite party's firm. 7. DW2 is the person who had given the FIR. He had retracted from his statement that Nadichi was a worker under the respondent therein. The owner as AW1 had also denied the factum of employer-employee relationship. There is no acceptable scrap of paper produced to establish M.F.A.. 1699 OF 1998 -:6:- the employer-employee relationship. The evidence tendered in this case is insufficient. From these discussions it can be seen that the there is no sufficient evidence to show that the deceased was working under the respondent's firm and there were no materials before the Court to establish the factum of employer-employee relationship. In the circumstances, the unavoidable result is to dismiss the case and I do so. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- M.F.A.. 1699 OF 1998 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 1699 OF 1998 = = = = = = = = = = = J U D G M E N T 14th December, 2009