IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 MFA.No. 649 of 2003(A) --------------------------------- WCC.57/1998 of W.C.C.,KOTTAYAM .................... APPELLANT: OPP.PARTY. ---------------------------------- KRISHNA PILLAI @ THANKAMONY, KANNOTH, VATTAKVUMKAL, NEDUMKANDAM. BY ADV. SRI.VPK.PANICKER RESPONDENTS: --------------------- SUDHAMANY, W/O.A.P.MADANAN, MLAKUZHY HOUSE, NEDUMANY P.O. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. No.649 OF 2003 = = = = = = = = = = = = = = = = = = = Dated this the 4th day of March, 2008 J U D G M E N T -------------------- The opposite party in W.C.C. No.57 of 1998 on the file of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kottayam, is the appellant. 2. One Madanan, husband of the respondent, filed the claim petition for compensation alleging that he was working as a cutter in the Sawmill of the appellant. It was averred that he sustained an employment injury and was entitled to get a compensation of Rs.1,00,000/-. It was averred that at about 10.30. a.m. on 12.8.1997 Madanan with the help of two others was pushing a timber log for sawing. It was averred that whileso the support of the log broke and it fell on the left leg of Madanan and he sustained very serious injury. Notice was issued to the appellant. Meanwhile Madanan committed suicide. The widow of Madanan was subsequently impleaded as the applicant. Appellant entered appearance and filed written statement. It was contended that Madanan was not M.F.A. NO.649 OF 2003 -: 2 :- an employee of the Sawmill run by the appellant. But some times he was appointed as a casual worker in 1996 and 1997 intermittently and he was paid Rs.100/- per day. It was contended that no such accident as stated in the application took place and Madanan sustained no employment injury. On the side of the applicant, respondent was partly examined in chief. But the chief examination was not completed. Thereafter the respondent did not appear before the Deputy Labour Commissioner. Certain documents were produced which were marked as Exhibits A1 to A5 series. The Deputy Labour Commissioner found that deceased Madanan was an employee of the appellant and he sustained employment injury on 12.8.1997 and he was disabled to attend the work from 12.8.1997 till 29.3.1998. It was further found that Madanan was entitled to get 25% of his monthly wages towards temporary disablement benefit under Section 4(1)I(d) of the Workmen's Compensation Act which was fixed as Rs.10,875/- with 12% interest. Challenging that order, this appeal is filed. 3. As noted by the Deputy Labour Commissioner even M.F.A. NO.649 OF 2003 -: 3 :- the chief examination of the applicant was not completed. The respondent never appeared and contested the case. The Deputy Labour Commissioner placed reliance on the statement in the FIR given by the brother-in-law of the respondent. The FIR was given on 29.3.1998 in which it was stated that Madanan committed suicide on that day. It was also stated that Madanan was not in a position to do any work because of the falling of timber log on his body and he had incurred heavy debt and because of the desperations he committed suicide. There is absolutely no reference that Madanan sustained an injury while he was working in the Sawmill of the appellant. It was stated that Madanan was unable to do any work. When exactly the incident took place was not stated. Exhibit A5(g) produced by the respondent shows that on 12.8.1997 Madanan was examined by a Doctor attached to the Mannam Memorial NSS Medical Mission Hospital, Karukachal with a history of falling of log in the left leg. No external injury was noted. Doctor advised X-ray. There is absolutely nothing in Exhibit A5(g) to show that Madanan sustained any fracture or even a serious injury on 12.8.1997. Exhibit A5(f) is the M.F.A. NO.649 OF 2003 -: 4 :- Medical Certificate issued by the Doctor attached to the Mannam Memorial NSS Medical Mission Hospital, Karukachal. In that certificate also there is no statement to the effect that Madanan sustained any employment injury. Outpatient Card and other Medical Certificates were also produced. But those documents do not support the case of the respondent that Madanan sustained an employment injury. So, it is not possible to hold that deceased Madanan sustained employment injury while he was working as a wood cutter. Even assuming that a timber log fell on the leg of Madanan, there is absolutely nothing on record to show that Madanan sustained any injury while he was working in the Sawmill of the appellant. It is true that in Exhibit A5(e) there is an entry that Madanan cannot do any work for three more months. That is because he sustained Lumbago. So there is absolutely no material to support the case of the respondent that deceased Madanan sustained employment injury and on account of the same he was having temporary disability. The order passed by the Deputy Labour Commissioner is unsustainable and it is liable to be set aside. I do so. The M.F.A. NO.649 OF 2003 -: 5 :- appeal is without any merit and the same is only to be dismissed. 3. In the result, appeal is dismissed. If the appellant had deposited any amount, he is entitled to withdraw the same. Interlocutory Application No.2186 of 2003 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH MARCH, 2008