IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 MFA.No. 1290 of 2002(A) ----------------------- AGAINST THE ORDER DATED 31.07.02 IN WCC.113/2000 ON THE FILE OF THE COMMISSIONER FOR WORKMENS' COMPENSATION (DEPUTY LABOUR COMMISSIONER,ERNAKULAM .................... APPELLANT/PETITIONER : --------------------------- MARY JOY, W/O. JOY, PATUVALIL, MEEMPARA P.O BY ADV. SRI.T.K.KOSHY SRI.K.P.PAULOSE RESPONDENT/OPPOSITE PARTY : ----------------------------------- MANAGING DIRECTOR, KAVERI PLASTICS (P) LTD., VADAYAMPADY P.O. BY ADV. SRI.A.M.SHAFFIQUE (SR.) SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON HE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F. A. No. 1290 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2009 JUDGMENT BALAKRISHNAN NAIR, J The petitioner in W.C.C No.113/2000 on the files of the Commissioner for Workmen's Compensation, Ernakulam is the appellant. Respondent herein was the opposite party. 2. The appellant, Smt.Mary Joy, moved the Commissioner for Workmen's Compensation under Section 22 of the Workmen's Compensation Act(for short 'the Act'), claiming compensation for the injury sustained by her during the course of her employment on 27.06.2000. She was employed to work in a heavy duty plastic moulding machine by the respondent. While working in the machine, her left hand was accidentally crushed and it was amputed at the elbow. She was engaged as a regular worker. Her wages was Rs.100/- per day and she was earning an income of Rs.3,000/- per month. She is aged 37 years and therefore she claimed a compensation of Rs.3,00,000/-. MFA No. 1290/02 -:2:- 3. After the preliminary examination, notice was served on the respondent. Respondent appeared and filed a written statement raising various technical contentions. Apart from that, it was contended that, she was drawing a consolidated salary of Rs.750/- per month. She was being engaged to do the sweeping work and also cooking work in the factory canteen. The monthly wages claimed by her is inflated and the consequential claim for compensation made in the application is also excessive and unsustainable, it was contended. 4. The claimant, Smt.Mary Joy, was examined as AW1 and from her side, Exts.A1 to A3 were marked. Ext.A1 is the letter issued by the respondent intimating her to come and receive Rs.35,000/- which the respondent company got under an insurance policy. Ext.A2 is the disability certificate issued by the Doctor, who treated her, which certifies that she suffered 65% disability. Ext.A3 is the attested copy of the electoral identity card issued to her by the Election Commission. From the side of the respondent he got himself examined as DW1. Apart from him, DWs 2 to 4 were also MFA No. 1290/02 -:3:- examined. DW2 was the supervisor and others were workers engaged by him. From his side, Exts.R1 to R7 were produced. But, the Commissioner relied only on Ext.R2 series, which is a document showing payment of wages to the workmen in the respondent's factory including the appellant. 5. After hearing both sides and considering the evidence on record, the Commissioner arrived at a finding that, the wages drawn by the appellant was Rs.750/- per month. It was also found that during the month of May, 2000 she earned Rs.37.5 as over time wages. Thus, the total wages of the appellant were computed as Rs.787.50. Since the injury sustained on the left hand came under the scheduled injury as item No.4 in Part II Schedule (1) of the Workmen's Compensation Act, the loss of earning capacity was fixed as 60% though the doctor certified it as 65%. Treating her age as 37, the multiplier taken was 192.14. Thus, the total compensation payable to her was computed as Rs.54,472/-. Though the respondent claimed that he has already paid Rs.35,000/- to her, the same was not accepted by the Commissioner. In the result, an order MFA No. 1290/02 -:4:- was passed directing the opposite party to pay Rs.54,472/- with 12% interest from the date of accident. It is common case that pursuant to the said direction the respondent has already deposited Rs.68,090/- before the Commissioner. 6. Aggrieved by the said order, the appellant has preferred this appeal. We heard learned counsel on both sides. What is the monthly wages of the worker is the only dispute between the parties that arises for consideration in this appeal. The pleadings on this point of the parties, we have already mentioned earlier. According to the appellant, it is Rs.3,000/- per month, whereas according to the respondent, it is Rs.750/-. 7. Now, we will refer to the evidence. AW1 has deposed that she has being paid Rs.100/- per day and therefore her monthly income was Rs.3,000/-. We notice that there was no cross examination of her on this point by the respondent. RWs1 to 4 would submit that her monthly salary was only Rs.750/-. DW1 has also produced Ext.R2 sheets, which would appear to be the 'acquittance roll' maintained by the said respondent. Mainly relying on the said MFA No. 1290/02 -:5:- document, the Commissioner has arrived at the finding that her monthly salary was only Rs.750/-, and taking into account the over time wages, the appellant's monthly salary was computed as Rs.787.50, about which we have already mentioned earlier. 8. Learned counsel for the appellant submitted that, Ext.R2 document is unreliable as suggested in the cross examination of DW1, on behalf of the worker. The sheets of papers which constituted Ext.R2 are cooked up for the purpose of this case. As per the provisions of the Factories Act and Rules, the respondent is bound to maintain various registers which will include the register dealing with payment of wages. In this case, two sheets of papers have been cooked up and presented before the Commissioner. So, the reliance placed by the Commissioner on the said document is unsustainable. Further, in the absence of any cross examination of the workmen on her claim regarding wages, there was no reason for the Commissioner to discard her statement on that point. So, the learned counsel for the appellant prayed that the wages of the appellant may be held as Rs.3,000/- and the compensation may be MFA No. 1290/02 -:6:- recomputed accordingly. 9. Learned counsel for the respondent on the other hand submitted that, the document Ext.R2 was marked without objection. Therefore, the present contention raised by the appellant is unsustainable. Further, all the witnesses of the respondent have deposed that her salary is Rs.750/- per month. That version has not been shaken in the cross examination of those witnesses. Therefore, there is no reason to disbelieve their version. The appellant has not chosen to examine any witnesses from her side. Other than her self serving and interested version, there is no document to support her case. He also pointed out that DW1 has asserted that the supervisor of the factory alone is paid only Rs.3,000/-. Therefore, the question of paying Rs.3,000/- to an unskilled worker like the appellant does not arise. So, the Commissioner has rightly arrived at the finding regarding the wages drawn by the worker, it is submitted. Learned counsel also submitted that the above point is a question of fact. Therefore, the dispute raised by the appellant does not give rise to any question of law, MFA No. 1290/02 -:7:- much less of any substantial question of law. Learned counsel relied on the decision of the Calcutta High Court in National Insurance Co.Ltd v. Susanta Das and another [2000-I-LLJ 463] in support of his submission. 10. In answer, the learned counsel for the appellant submitted that the findings of the Commissioner is perverse and therefore the appellate court can interfere with the same in an appeal under Section 30 of the Act. It is also pointed out that, DWs 2 to 4 are not persons named in Ext.R2 and therefore their versions cannot be acted upon. 11. We have already noticed the contentions of both sides regarding the finding of the Commissioner on the quantum of wages drawn by the appellant. We notice that though the appellant has stated that she is drawing a wage of Rs.100/- per day, the said statement has not been challenged in cross examination. It is true, the version of AW1 is a self serving statement. But it does not mean that the Court cannot accept or act upon it, if it is found to be otherwise reliable and there is no contra evidence to disprove it. In MFA No. 1290/02 -:8:- this case, the version of DW1 is also admittedly self serving. The respondent points out that this is corroborated by the versions of DWs 2 to 4. But we find that their names do not find a place in Ext.R2, which according to the respondent is the relevant sheets of the 'acquittance roll'. So we feel that, it is quite unsafe to rely on the versions of DWs 2 to 4. Further, every factory is bound to maintain various registers including registers concerning payment of wages. The respondent does not have a case that he is issuing wage slips to the workmen. So the criticism of the respondent that the appellant has not produced any material to show her correct wages, is unjustified. A party can be called upon to produce evidence which is available with him or her. In this case we assume that the respondent was having registers and records to show the wages paid by him to the workmen under him. Going by Ext.R2, we are inclined to accept the criticism of the appellant against it. In a factory like that of the respondent it is inherently improbable that such loose sheets are maintained as records concerning payment of wages. The possibility of manufacturing of those documents for the purpose of MFA No. 1290/02 -:9:- production before the Commissioner, cannot be ruled out. In the absence of cross examination of the appellant, we are inclined to accept the version that she was paid Rs.100/- per day. But the learned counsel for the appellant submitted that, it is not probable that an unskilled worker was being paid Rs.100/- per day in the year 2000. But in many cases it is common experience that, wages of unskilled workers like agricultural workers were higher when compared to white collar or blue collar employees. So, if a worker employed to do sweeping work and also cooking work is paid Rs.100/- per day, the same cannot be described as wages on the higher side. At any rate, we do not find any reason to disbelieve AW1, in the absence of any cross examination of her on this point. 12. But, going by Section 4(1)(c)(i) read with explanation II of Section 4(1) (b) of Workmen's Compensation Act, the maximum wages has to be restricted to Rs.2,000/- per month. We feel that the wages of the workmen should have been computed as at least Rs.2,500/- per month, taking that she works for 25 days in a month. In view of the statutory restriction the same should have been fixed MFA No. 1290/02 -:10:- as Rs.2,000/-. But, now the question arises whether the above finding of the Commissioner with which we are differing can be described as an illegal or perverse finding warranting interference by the appellate court under Section 30 of the Act. 13. We notice that the Commissioner has rendered a finding ignoring the claim of the appellant which remained unchallenged in the cross examination. The Commissioner has also relied on the two pieces of papers produced in the form of Ext.R2, when the original document would have been available with the respondent. So, placing reliance of Ext.R2 was a plainly perverse approach. So, the finding which has been arrived at by the Commissioner in disregarding the evidence on record and also relying on irrelevant and inadmissible material is unjstified. Therefore, the decision of the Commissioner is vitiated. In view of the extended meaning of the jurisdiction adumbrated in a decision of the Apex Court in Mafatlal Industries Ltd. and others v. Union of India and others [1997(5) SCC 536 - see the concurring judgment of Paripoornan, J], we have no doubt that the Commissioner has committed a jurisdictional error. MFA No. 1290/02 -:11:- An order suffering from such infirmity can definitely be interfered with, in an appeal under Section 30 of the Act. In the result, the appeal is allowed on the following terms: The monthly wages of the worker is computed as Rs.2,000/- and the total compensation payable is re-computed as Rs.1,38,340/-. The appellant is entitled to get the said amount with 12% simple interest from the date of accident till the date of payment. The amount already deposited and which has been paid to the worker shall be deducted from the amount payable to the appellant. The balance amount shall be deposited before the Commissioner within one month from today. K. BALAKRISHNAN NAIR, JUDGE K.SURENDRA MOHAN, JUDGE ttb