IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 MFA.No. 188 of 2004() --------------------- WCC.14/2001 of W.C.C.,KOTTAYAM .................... APPELLANT: OPPOSITE PARTY: ------------------------------------------------- JOYKUTTY @ JOHN VARGHESE, J.K.RUBBER INDUSTRIES, INDUSTRIAL NAGAR P.O., CHANGANACHERRY-6. BY ADV. SRI.M.V.S.NAMBOOTHIRY RESPONDENT: APPLICANT: ------------------------------------------- M.P.AJITH, S/O.PADMANABHA PILLAI, MANGALA PUTHENPARAMBIL HOUSE, THRIKKPODITHANAM P.O., CHANGANACHERY. BY ADV. SRI.A.K.HARIDAS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.NO.188 OF 2004 (A) --------------------------------------- Dated this the 23rd day of June, 2008 J U D G M E N T Koshy,J. First respondent in this appeal filed an application for compensation before the Commissioner for Workmen's Compensation, contending that, on 31.3.1999, he sustained injuries during the course of employment under the appellant. As a result of the accident, his right palm was crushed in the machine and all fingers in the right hand was lost. He was only 15 years old at the time of accident. AW1 and AW2 were examined on behalf of the claimant. According to AW1, on the date in question, he was working in the factory of the appellant and his hand was accidentally went inside the machine and all fingers in his right hand were lost. AW2, a co-worker deposed that he was also working in that establishment and he has taken the claimant into the hospital. The appellant employer was examined as RW1. He stated that claimant was not employed by MFA.188/04 2 him. RW2 stated that he was unaware of the details. RW3 was a cashier in the factory and he was not employed at the relevant time in the factory and RW4 deposed that he was the Supervisor of the factory and according to him, he has joined the service at the age of 17 or 18 and he has no special qualification or previous qualification when he was appointed as Supervisor. According to the evidence of the appellant witnesses, all the labour records were maintained but muster rolls and other documents were not produced. The Commissioner evaluated the evidence and quoted the relevant portions of the depositions in the court and found on the basis of the evidence that claimant was a worker under the appellant and during the course of employment, accident occurred. According to the counsel for the appellant, as per the decision in United India Insurance Co. Ltd. and another v. Komalam and Others (2007 (4) KHC 703 (DB)), burden is on the employee to prove that accident occurred during the course of employment and he was a worker. In that case, claim was filed after six years of the accident and there was absolutely no evidence to show that MFA.188/04 3 incident occurred during the course of employment. But in this case, evidence was adduced and from the evidence adduced, Commissioner found that accident occurred during the course of employment and he was employed by the appellant. Under Section 30 of the Workmen's Compensation Act, appeal can be filed only on a question of law and not a question of fact found by the Commissioner. 2. Commissioner fixed Rs.2,000/- as the monthly income even according to the application, his monthly income was Rs.1,800/- only. He was only 15 years old. It is true that ledger etc. in the possession of the appellant was not produced, but in any event, Commissioner went wrong in taking more amount than that is claimed by the appellant. If that be so, compensation payable will be Rs.1,800 x 60/100 x 228.54 x 60/100 = Rs.1,48,093.92. The injury was a scheduled injury. All the five fingers of the right hand were lost, and therefore, matter is coming under Entry No.4, Part II of Schedule I of the Workmen's Compensation Act and total amount payable will be MFA.188/04 4 Rs.1,48,093.92, rounded to Rs.1,48,094/- instead of Rs.1,64,549/- awarded by the Commissioner. The above amount of Rs.1,48,094/- is payable by the appellant with statutory interest as awarded by the Commissioner from the date of accident till 18.11.2004, the date of deposit of the amount after deducting the amount already deposited. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp