IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 MFA.No. 184 of 2007() --------------------- WC.191/2000 of Commissioner for Workmen's Compensation KOZHIKODE .................... APPELLANT(S): 1ST OPPOSITE PARTY: --------------------------------- C.M. SHAJU, AGED 34 YEARS, S/O. GOPALAN NAIR, RESIDING AT 'KRISHNAPURAM'HOUSE CHERIYA MAVILAPADI, AVALA AMSOM, DESOM,(P.O) AVALA (VIA) MEPPAYYUR, KOYILANDY TALUK,KOZHIKODE DIST. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): APPLICANTS 1,2,4 & 5 & OPP.PARTIES NO.2 AND 3: ------------------------------------------------------------- 1. VENU P.M., S/O. CHATHU (HOUSE OF DEVI), MALAYIL VALAPPIL HOUSE,AVALA P.O. MEPPAYUR, KOYILANDY, PIN 673 306. 2. LEELA, W/O. KELAPPAN, M/O. DECEASED DEVI, MALAYIL VALAPPIL HOUSE,AVALA P.O. MEPPAYUR, KOYILANDY, PIN 673 306. 3. VIJISHA, D/O. DECEASED DEVI, MALAYIL VALAPPIL HOUSE,AVALA P.O. MEPPAYUR, KOYILANDY, PIN 673 306. 4. ASWATHI, D/O. DECEASED DEVI, MALAYIL VALAPPIL HOUSE, AVALA AMSOM, DESOM, P.O. AVALA, (VIA) MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT PIN 673 306. 5. KUNHIKANNAN, S/O. KANNAN, AGRICULTURIST, "THEKKE CHULLIYOTH" HOUSE, AVALA AMSOM, DESOM, P.O. AVALA, (VIA) MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT PIN 673 306. 6. RADHA, W/O. KUNHIKANNAN, "THEKKE CHULLIYOTH" HOUSE, AVALA AMSOM, DESOM, P.O. AVALA, (VIA) MEPPAYUR, KOYILANDY TALUK, KOZHIKODE DISTRICT PIN 673 306. ADV. SRI.M.ASOKAN FOR R1-4 SRI.DEVAPRASANTH.P.J. FOR R1-4 SRI.BIJU J.THADIKKAL FOR R5 & 6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. (W.C.C.) No.184 of 2007 ----------------------------------------------- Dated 12th October, 2011. J U D G M E N T K.M.Joseph, J. The appellant challenges the order passed by the Commissioner for Workmen's Compensation, by which the appellant is called upon along with the second and third opposite parties to pay Rs.2,11,790/- with simple interest at 12% from the date of the accident. 2. The brief case of the applicants was as follows : They are the dependents of deceased Devi, who met with a fatal accident on 5.5.2000. According to them, deceased Devi was working in a quarry situated in Karimpanpuram paramba. The second and third opposite parties are husband and wife and owners of the quarry. The first opposite party was doing the business of excavation of soil. The deceased workman and others were alleged to be the employees of the opposite parties. Wages were paid by the first opposite party and in his absence, by respondents 2 and 3. The fatal accident occurred when a portion of the mud hill from a height of 50 feet fell on the persons working there. MFA 184/07 2 3. The Commissioner has found that the wages can be taken at Rs.2,000/- (which was the maximum which could be taken at the time of accident) and awarded a compensation as aforesaid. 4. We heard learned counsel for the appellant and learned counsel for the claimants. Learned counsel for the appellant would submit that there is no employer-employee relationship between the appellant and the deceased workman. He further points out that the lorry owner should have been made a party and actually, the employer-employee relationship was between the workman and the lorry owner. It is further contended that the Commissioner acted illegally in taking Rs.2,000/- as wages, as the maximum wages was increased to Rs.2,000/- only in December, 2000. According to him, the inquest report would also reveal that the accident took place when the soil was being loaded into the lorry. Per contra, learned counsel for the applicants supported the order. 5. In point No.5, we notice that the Commissioner has entered a finding of fact. It is inter alia found that all the MFA 184/07 3 three opposite parties are contesting their cases jointly as if they were business partners. It is inter alia found as follows : “They also argued that they owned no landed property called Karimpanpuram paramba. But they possess a piece of landed property in Karimbampunam hills. Karimbampunam is a hillock in Avala. A portion of Oloth meethal paramba was in the possession of second and third opposite parties. It is in Karimbampunam hills. Ext.A4 - Sale Deed confirms it. In the Sale deed the land is described as: ............................................................................................. ......................................................... The opposite parties admit that excavation of soil was going on in various parts of the hillock Karimbanpunam. The soil excavation was there in the landed property of opposite parties also. They did not deny that. It is an admitted fact that there occurred an accident in the Karimbanpunam hills on 5.5.2000. The persons who possess landed property in Karimbanpunam hills will know in whose quarry the accident occurred. If the accident was not in their quarry the opposite parties are at liberty to point out the place of accident and the owner of the landed property. All these facts and circumstances make me to believe the version of the claimants that the accident occurred in the quarry owned by second and third opposite parties. MFA 184/07 4 xxx xxxx xxx xxx xxx xxxx xxx xxx Ext.A6 and A7 were marked under protest from the opposite parties. In the opinion of this Court strict adherence to judicial procedures is not necessary in quasi judicial proceedings. Quasi judicial functions are fact finding missions. As such even news paper reports are not unacceptable in finding out facts. News items are not always preconceived particularly reporting mishaps. Ext.A6 and A7 news paper reports are in conformity with the depositions of the applicant and witness that opposite party No.1, Shaji was doing the business of excavation and sale of soil in the accident site at Karimbanpunam hillock. It is already found in the discussions made early that the quarry land whether it is Karimbanpunam or Cloth Meethal where accident occurred was in the possession of second and third opposite parties. The land owners have not adduced any evidence to show that they had entered into any contract with first opposite party for excavation of soil from their land. Moreover all the three opposite parties are contesting their cases jointly as if they were business partners. The facts and circumstances of the case did not allow me to discard the testimonials of the claimants that the opposite parties 1, 2 and 3 were carrying on the business of excavation and sale of soil together and that they engaged the deceased Devi and others for the work in connection with the soil excavation. There is no piece of evidence before this Court to show that the deceased and MFA 184/07 5 others at the time of accident were under the employment of the vehicle owner. The opposite parties have not made any efforts to establish their contention. They tendered no evidence oral or documentary to this effect. Vehicles are always used for transporting of excavated soil. In almost cases such vehicles are hired by the persons who run the business of soil excavation and sale. Here also there is nothing to think otherwise. On consideration of the materials and other evidence on record it is apparent that the first, second and third opposite parties were the employers of the deceased workman Devi and hence they are liable to pay compensation to the dependents of the deceased whose death was on account of the personal injuries caused by way of the accident arose during and in the course of employment.” 6. This is essentially a question of fact. We also cannot overlook the fact that the appellant did not adduce any evidence. Merely stating that opportunity was denied to him does not appear to be convincing. We notice that the claim was filed in the year 2000. It was disposed of finally in the year 2007. The matter was pending before the Commissioner for seven years. Therefore, we find no merit in that contention. Therefore, the finding of the employer-employee relationship between the deceased worker and respondents/ opposite MFA 184/07 6 parties appear to be a finding of fact based on materials. At any rate, we are not convinced that any substantial question of law is made out as such. As far as the question of wages is concerned, the maximum wages of Rs.2,000/- was fixed in the year 1995 and was increased as Rs.4,000/- in December, 2000. 7. Lastly, learned counsel for the appellant would also contend that the claim of the applicants was only Rs.2,07,980/-. However, an amount of Rs.2,11,790/- was awarded as compensation by the Commissioner. There is merit in that contention. We accept that contention. Accordingly, we modify the award and limit the award to a sum of Rs.2,07,980/-. The appeal is allowed as aforesaid. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.