IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 38153 of 2007(P) -------------------------- PETITIONER: ------------ K.M.SAHADEVAN, AGED 40 YEARS, MANAGING PARTNER MARIYA TILES, PALIAKARA P.O., RESIDING AT KODAKKATTIL HOUSE, PALIAKKARA P.O., CHITTISSERRY, THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENTS: ------------- 1. COMMISSIONER FOR WORKMEN'S COMPENSATION, (DEPUTY LABOUR COMMISSIONER) THRISSUR. 2. DEPUTY TAHSILDAR (RR), MUKUNDAPURAM, THRISSUR. 3. KALYANI.V.K., D/O.KUTTAPPAN, VELLIRIKKAL HOUSE, VATTEKADU, KANAKAMALA P.O., THRISSUR. ADDITIONAL RESPONDENT: 4. EMPLOYEES' STATE INSURANCE CORPORATION, REP. BY ITS REGIONAL DIRECTOR, ROUND NORTH, THRISSUR. (ADDL.R4 IMPLEADED AS PER ORDER ON I.A.NO.434/08 DTD.24.1.08) BY ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND FOR R3 SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 38153/07. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER IN W.C.C.NO.217/00 DTD.17.4.01. P2. COPY OF THE AFFIDAVIT AND PETITION FOR SETTING ASIDE Ext.P1. P3. COPY OF THE RECEIPT DTD.23.5.01. P4. COPY OF THE FORM 6 REPORT. P5. COPY OF THE RELEVANT PAGES OF ACCIDENT BOOK. P6. COPY OF THE ACCIDENT REPORT BY PETITIONER BEFORE R4. P7. COPY OF THE COUNTER AFFIDAVIT BY R3. P8. COPY OF THE ORDER DTD.20.3.06 BY R1. P9. COPY OF THE ATTACHMENT NOTICE BY R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.38153 of 2007 ================== Dated this the 30th day of July, 2008 J U D G M E N T The petitioner is the present managing partner of an establishment wherein an accident had occurred resulting in injury to the 3rd respondent. The 3rd respondent filed an application before the Workmen's Compensation Commissioner seeking compensation for the injury sustained by her in the course of employment. By Ext.P1 ex parte order the Workmen's Compensation Commissioner directed the petitioner to pay compensation amounting to Rs.59,671/- with 12 per cent interest thereon to the 3rd respondent. The petitioner is the subsequent owner of the establishment. He filed Ext.P2 application for setting aside Ext.P1 order primarily on the ground that since the third respondent being an employee covered under the Employees' State Insurance Act, her remedy was to seek reliefs under the Employees' State Insurance Act from the Employees State Insurance Corporation, which is the additional 4th respondent in the writ petition. However, that petition was w.p.c.38153/07 2 dismissed on the ground delay and laches. It is challenging that order, Ext.P4, the petitioner has approached this Court. 2. The petitioner raises a contention that since the 3rd respondent is an employee covered under the Employees' State Insurance Act, Section 53 of the ESI Act would be attracted, in which event, the petitioner would not be liable to pay compensation to the 3rd respondent. In view of the above contention, I directed the petitioner to implead the additional 4th respondent, who has now filed a counter affidavit stating that although the establishment is a covered establishment, in respect of the 3rd respondent no contributions were paid for the period in which the accident occurred. They would also submit that the third respondent is not a registered employee. This is disputed by the counsel for the petitioner. He would submit that as per the provisions of the ESI Act, the 3rd respondent was an insured person as defined under the Act and therefore, she is entitled to be paid accident benefits under the Act. 3. I have considered the rival contentions in detail. 4. I am of opinion that this being purely a dispute between the petitioner on the one hand the the ESI Corporation w.p.c.38153/07 3 on the other, the 3rd respondent cannot be deprived of the compensation due which has been awarded as per Ext.P1. However, at the same time, I feel that the petitioner should not be left with no remedy in such circumstances. The question as to whether the 3rd respondent is an insured person or not is a question of fact, for ascertaining which, it would be necessary to adduce evidence. The proper forum for that purpose would be the Employees' Insurance Court. Therefore, the petitioner has to file an Insurance Case before the E.I. Court for the purpose. Accordingly, this writ petition is disposed of with the following directions: The petitioner shall deposit the amount covered by Ext.P1 before the Workmen's Compensation Commissioner, Thrissur within one month from today. The petitioner shall file an I.C. before the E.I. Court, seeking appropriate reliefs in the matter within one month. If such an I.C. is filed, the same would be entertained by the E.I. Court as one validly filed and adjudicate the same in accordance with law. If ultimately the petitioner succeeds in the I.C., the amount deposited by the petitioner before the Workmen's Compensation Commissioner would be w.p.c.38153/07 4 reimbursed by the additional 4th respondent. The 3rd respondent would be free to approach the 1st respondent for disbursal of the amount deposited by the petitioner as directed above, on which the Workmen's Compensation Commissioner shall take appropriate steps as provided in the Workmen's Compensation Act. If the petitioner deposits the amount as directed above, further revenue recovery proceedings shall be dropped. However, if the petitioner does not produce proof of having deposited the amount with the 1st respondent before the 2nd respondent within one month, the 2nd respondent shall continue recovery proceedings as now initiated and complete the proceedings within a further period of two months. It would be open to the 3rd respondent also to approach the 2nd respondent for this purpose, in such an event. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.38153/07 5