IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 MFA.No. 90 of 2009() -------------------- WCC.224/2003 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD CHALAKUDY,REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH,KOCHI-18 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE SMT.K.S.SANTHI SMT. MARY K T RESPONDENTS: APPLICANTS/IST OPPOSITE PARTY ----------------------------------------------------------------------- 1. THOMAS,F/O.LATE SIBI, CHIRAYATH HOUSE, RESIDING AT MALAYATTOOR DESOM,VILLAGE & P.O. ALUVA TALUK, ERNAKULAM DISTRICT. 2. ROSY,M/O.LATE SIBI,W/O.THOMAS, CHIRAYATH HOUSE, RESIDING AT MALAYATTOOR DESOM, VILLAGE & P.O. ALUVA TALUK, ERNAKULAM DISTRICT. 3. METTY JOSE, S/O.JOSE,KUTTIPUZHAKKARAN HOUSE,MELOOR P.O. ADV. SRI.P.V.BABY FOR R1,2 SRI.A.N.SANTHOSH FOR R1,2 SRI.P.BABU KUMAR FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 90 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of September, 2011 JUDGMENT K.M. Joseph J., This is an appeal filed against the order passed by the Workmen's Compensation Commissioner under Section 22 of the Workmen's Compensation Act allowing the claim of the respondents to the tune of Rs.3,74,364/- with interest at the rate of 12% per annum. 2. The case of the applicants was briefly as follows. The respondents 1 and 2/applicants claimed compensation on account of death of one Sibi in a motor accident alleging that the motor cycle was owned by the first opposite party in pursuance of the contract employment for collecting the outstanding payments of the first opposite party and he sustained injuries which turned out to be fatal M.F.A.(W.C.Act) No. 90 of 2009 :2: as a result of the accident. 3. We had condoned the delay of 983 days in filing this appeal. 4. The reasons stated in the affidavit becomes relevant in the nature of the disputes projected by the appellant. We extract paragraph nos.3, 4 and 5 of the affidavit filed in support of the application for condonation of delay in filing the appeal. “The police documents in this case would show that Sibi died while driving vehicle KL-8R 2789 owned by the first opposite party. The appellant had no information regarding the collusion between the parties in this case. The fraud played in this case came out during inquiry by a special investigation team appointed by High Court of Kerala in Crl.M.C. No.405 of 2006 to investigate on allegations against the Muringoor retreat Centre. In the course of the investigation the police found that Sibi was a volunteer in the kitchen and that he died while riding on own motor cycle KL7AD 5656 and that the story put forward in the application was fabricated to obtain insurance amount from the petitioner M.F.A.(W.C.Act) No. 90 of 2009 :3: company. There is connivance between the claimant and first opposite party and the police in this matter. The Deputy Superintendent of police special branch C.I.D. Thrissur by letter dated 3.3.07 informed the Commissioner that deceased in this case was not an employee of the first opposite party and the accident was not during the course of his employment under the first opposite party. The sworn statement was also given by the Superintendent of Police before the Commissioner for Workmen's Compensation on 12.9.07 in this regard. On coming to know of this the petitioner filed an application for obtaining copy of the letter and sworn statement referred above. The same was not given and this petitioner approached the High Court in W.P.(C) No.4882 of 2008 in this regard and the Court directed to issue copies of the document sought for. In the meanwhile the petitioner filed application to set aside/recall order dt.25.5.06 in the light of the new facts brought out during investigation and also of the fact fraud has been played in this matter. But the learned Commissioner dismissed the petition by order M.F.A.(W.C.Act) No. 90 of 2009 :4: dt.10.2.09, a copy was received by the petitioner on 25.3.09. In fact there is no delay in approaching this Court taking the order dt.10.2.09 which was served on the petitioner on 25.3.09. But calculating delay from the date of the order dt.25.5.06 there is a delay of 983 days in filing this appeal. The delay occurred as stated above.” 5. Learned counsel appearing for the claimants fairly did not dispute the correctness of the statement filed by the appellants. He does not dispute that there was an investigation as ordered by this Court. Special investigation team conducted investigation, filed the report which tended to show that the version of the applicants before the Commissioner was false. In point of fact, the deceased Sibi died as a result of injuries sustained by him when he was driving the motor cycle owned by himself. It is also not disputed that in the enquiry it is further revealed that actually the deceased workman was not an employee of the third respondent in this appeal, who was the first opposite party before the Commissioner, M.F.A.(W.C.Act) No. 90 of 2009 :5: but the deceased was working as a cook in the Divine Retreat Centre, Muringoor. 6. In these said state of affairs, we would think that the appellants are fully justified in appealing the order. Having regard to the circumstances which are brought out, we are of the view that the appeal is only to be allowed. 7. Accordingly the Appeal is allowed. The impugned order will stand set aside and the application by respondents 1 and 2 will stand dismissed. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/