IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 MFA.No. 137 of 2004() --------------------- WCC.19/1993 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COM MISSIONER) ,KOTTAYAM .................... APPELLANT: RESPONDENT --------------------- M.N.SOMANATHAN, MATTATHIL, VELLOOR, DISTRICT KOTTAYAM. BY ADV. SRI.K.REGHU KOTTAPPURAM SMT.URSULA FRANCIS RESPONDENTS: APPLICANTS & RESPONDENTS NOS.1, 2 & 3 ---------------------------------------------- 1. AMMINI, THADATHIL HOUSE, PAYYAPPADI KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. 2. JAYAMON, THADATHIL HOUSE, PAYYAPPADI KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. 3. CINI MOL, THADATHIL HOUSE, PAYYAPPADI KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. (*) 4. JANAKI THADATHIL HOUSE, PAYYAPPADI KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. (DIED.LRS IMPLEADED) 5. THE COMMISSIONER FOR WORKMEN COMPENSATION, (DEPUTY LABOUR COMMISSIONER), KOTTAYAM. (**) 6. M.N. SOMAN, MALIKAD HOUSE, VAZHOORKARA.(DELETED) (***)7. SASIDHARAN NAIR, S/O. NARAYANAN NAIR, PUTHUPPARAMBIL HOUSE, PAMPADY KARA, KOTTAYAM.(DELETED) (**) 8. CHANDARASEKHARAN NAIR, PUTHUPPARAMBIL HOUSE, PAMPADY, KOTTAYAM.(DELETED) MFA No.137/2004 2 (*)ADDL.RESPONDENT 9: GOPI, S/O.LATE JANAKI, THADATHIL HOUSE, PAYYAPPADI P.O., PUTHUPPALLY, KOTTAYAM. ADDL.R9 IS IMPLEADED AS LR OF THE DECEASED 4TH RESPONDENT VIDE ORDER DATED 18.1.2008 ON IA NO.2966/2007. (**)THE NAMES OF RESPONDENTS 6 AND 8 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 17.12.2007 ON IA NO.2968/2007. (***)R7 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 28.7.2004 ON IA 2280/2004. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.(WCC) No.137 of 2004 ------------------------------------------------- Dated, this the 29th day of February, 2008 JUDGMENT This appeal is filed by the fourth opposite party against whom an order was passed by the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kottayam in W.C.C.No.19/1993 by which he was directed to pay an amount of Rs.70,216/- as compensation on account of death of Mony who was stated to be a toddy tapper of the appellant. 2. One Mony who was climbing a palm tree accidentally fell down from the palm at or about 11 a.m. on 12.3.1992. He was taken to Medical College Hospital, Kottayam. He succumbed to injuries on the evening of the same day. His widow and children filed a petition before the Workmen's Compensation Court alleging that the deceased was a toddy tapper of T.S.No.78 of Pampady Range. Initially one M.N.Soman and Sasidharan Nair were impleaded as opposite parties. Subsequently one Chandrasekharan Nair and appellant were impleaded as additional opposite parties. The case of the applicants was that deceased was the toddy tapper of T.S.No.78 of Pampady Range and he was getting an average monthly wages of Rs.1,560/- and he was aged about 40 years. Applicants claimed Rs.90,000/- as compensation. Opposite party Nos.2 and 3 remained exparte. Opposite party Nos. 1 and 4 appeared and filed written statement disputing the status of the deceased as a toddy tapper of T.S.No.78 of Pampady MFA No.137/2004 2 Range. It was contended that deceased was never employed as toddy tapper by the appellant and as such there was no employer-employee relationship. So the applicants were not entitled to get any compensation. Relying on the oral evidence of AWs 1 to 3 Deputy Labour Commissioner found that deceased was the employee of the appellant and appellant was directed to pay an amount of Rs.70,216/- with 6% interest from the date of accident till the date of deposit. Challenging that order this appeal is filed. 3. The certificate issued by Tahsildar (RR), Kottayam shows that movables of the appellant were sold on 13.9.2001 for an amount of Rs.19,950/- and he deposited various amounts totalling Rs.72,453/- in final settlement. The main argument raised before this Court was that the Deputy Labour Commissioner only extracted the statements made by the witnesses during their chief-examination and the effect of admissions made by them during cross- examination was not considered. Learned counsel appearing for the appellant has argued that there was an admission made by AW1 to the effect that there was absolutely no documentary evidence to prove the employer-employee relationship. It is also argued that she had also admitted that deceased was not even a member of any union. It is argued that unless a toddy tapper is a member of any of the unions, he will not be allowed to do work of toddy tapping at all. It is also argued that PW1 had admitted that she was having only a hearsay knowledge. The case put forward by the petitioners from the very beginning was that one MFA No.137/2004 3 Thankachan was a toddy tapper attached to T.S.No.78 of Pampady Range and because he was unable to do the work the deceased was working as a proxy for Thankachan. In the FIR also the statement was that he was doing work in the place of Thankachan. Deputy Labour Commissioner had not considered the entitlement of such a person to claim compensation. The evidence on record shows that the employer was also not in position to pay compensation. His movables were auctioned for realising a portion of the amount. Considering all aspects of the matter I am of the view that the Deputy Labour Commissioner ought to have made sincere efforts to settle the matter between the parties rather than deciding it on merits. Since Deputy Labour Commissioner has not considered the entire matter on merits, I have no other option but to set aside the order dated 28.8.2000 passed in W.C.C.No.19/1993 and send the case back to court below for reconsideration. Deputy Labour Commissioner shall issue notice to the legal representatives of deceased Mony and make every sincere efforts to settle the matter. In the result, appeal is allowed. Order dated 28.8.2000 passed by the Deputy Labour Commissioner in W.C.C.No.19/1993 is hereby set aside. W.C.C. is remanded to the Court of Workmen's Compensation Commissioner (Deputy Labour Commissioner), Kottayam for fresh disposal in accordance with law. He shall make an earnest effort to settle the matter before deciding it on merits. I make it clear that I am not expressing any opinion regarding the rival contentions MFA No.137/2004 4 raised by both sides and it is for the Deputy Labour Commissioner to come to any conclusion after appreciating the evidence. If the parties apply for an opportunity to adduce further evidence, they shall be given an opportunity to adduce further evidence. K. PADMANABHAN NAIR, JUDGE. cks MFA No.137/2004 5 K.PADMANABHAN NAIR, J. M.F.A.(WCC ) No.137 of 2004 JUDGMENT 29th February, 2008.