IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 Ins.APP.No. 53 of 2009() --------------------------------- IC.29/2004 of E.I.COURT, KOLLAM .................... APPELLANT/ OPPOSITE PARTIES ---------------------- 1. ESI CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-20. 2. THE RECOVERY OFFICER, CENTRAL ZONE, PANCHADEEP BHAVAN NORTH SWARAJ ROUND, THRISSUR-20. BY ADV.MR.THOMAS MATHEW NELLIMOOTTIL RESPONDENT(S): APPLICANT ------------------------ M/S.SIBI STEEL ENGINEERING WORKS, ENATHU, REPRESENTED BY ITS PROPRIETOR, SLEEBA KOSHY, K.S.BUNGLOW, ENATHU VILLAGE. BY ADV. MR.R.SUDHIR THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 53 OF 2009 = = = = = = = = = = = = = = = Dated this the 8th day of January, 2010. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Kollam in I.C.29/04. The establishment moved an application challenging the order of coverage and the Insurance Court on an analysis held that the establishment never employed more than 9 persons and therefore negatived the contention of the E.S.I.Corporation. It is against that the ESI Corporation has come up in appeal. In order to entertain an appeal it has to be found whether there is any substantial question of law. Now really the question is how much are the number of employees employed in the establishment. It is a question of fact. In order to overcome the same the learned counsel for the appellant had argued before me that the burden of proof is on the establishment to prove that there were never 10 employees. He is legally correct. But now the establishment has produced convincing documents in the form of Exts.A1 to INS.APPEAL NO. 53 OF 2009 -:2:- A4. They are the attendance registers and they would never reveal that more than 7 persons were seen employed in the establishment. So it has discharged its burden. Now the only evidence on the side of the E.S.I.Corporation is the report of its officer and the owner has refused to sign the statement prepared by him on the ground that the number of employees are not correct. Therefore on an analysis of the materials would reveal that documentary evidence kept in the ordinary course of business would reveal that the number of employees are always less than 9. When it is so there is no other acceptable evidence to prove it otherwise. Therefore the finding of the E.I.Court that there were never more than 9 employees appears to be correct and legally sound. Therefore there is no mis-appreciation of evidence and no substantial question of law involved. Hence the appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/-