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 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MFA.No. 185 of 2011 ---------------------------- WCC.22/2009 of THE COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT(S): II OPPOSITE PARTY: ---------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., TALIPARAMBA, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): APPLICANTS & IST OPPOSITE PARTY: ------------------------------------------------------------------------------- 1. FATHIMA ISMAIL, W/O.ISMAIL, IF HOUSE, ALLAMKULAM, PO KARIMBAM, TALIPARAMBA-670142. 2. ABDUL RAHIMAN, S/O.ISMAIL -DO- 3. MUHAMMED NIYAS, S/O.ISMAIL -DO- 4. NABIL ISMAIL, S/O. ISMAIL -DO- 5. NIHAL ISMAIL, S/O.ISMAIL, -DO- 6. MOHAMMED ANAZ, S/O.ISMAIL, AB ENTERPRISES,MARKET ROAD, TALIPARAMBA, P.O.TALIPARAMBA-670 141. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.185 of 2011 ----------------------------------------- Dated, this the 2nd day of November, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the 2nd opposite party/insurer in a proceedings under Section 22 of the Workmen's Compensation Act, 1923. The case of the applicants in brief was as follows: They claim to be the legal heirs of one Ismail who was working as Driver cum Salesman in M/s.AB Enterprises, Taliparamba owned by the Ist opposite party. The Ist opposite party is the son of the deceased Ismail. Ismail was a paid Driver. He succumbed to injuries in an accident. Hence the claim. The 2nd opposite party/appellant raised the contention that Ismail was not an employee and he was actually a partner of the Ist opposite party. The Commissioner took note of the following contents of Ext.A5 which is the notice sent by the appellant. “......................At the time of accident Mr.Ismail who succumbed to the injuries was a paid driver and does not fall within the purview of the P.A cover of the policy. You may therefore advice your client to approach the respective forum for benefits.” Aw1 has given evidence. Aw1 is the 3rd applicant. 2. We heard the learned counsel for the appellant. MFA 185/2011 -2- Learned counsel for the appellant would say that there is no documentary evidence for payment of wages or other incidents of employment claimed by the applicants. Of course, he submits that a statement was made in the reply notice. But, according to him, that was not sufficient. Learned counsel for the appellant also would contend that the Commissioner ought not have ordered interest from the date of accident. 3. As far as the Ist question is concerned, we notice that there is absolutely no evidence given by the 2nd opposite party. We would think that evidence would have been necessary particularly when Ext.A5 produced contained an admission as noted by the Commissioner that the said Ismail was a paid employee. If the admission was wrong attempt could have been made by the appellant to explain it which could have been done by adducing evidence. No such attempt has been made. When Ext.A5 is taken into consideration prima facie it may not be open to the appellant to still contend that Ismail is not a paid employee. Moreover, there is evidence of Aw1. We must notice the context and remind ourselves that being an appeal under Section 30 there must be a substantial question of law made out. Whether a person is an employee is essentially a question of fact. In this case we would think that the appellant has not made out any MFA 185/2011 -3- case for our interference. 4. Learned counsel for the appellant also contends that the Commissioner has acted illegally in awarding interest from the date of accident. He would submit that only upon adjudication, the liability arises and therefore interest could be ordered only from the date of the adjudication and not from the date of the accident. Learned counsel relied on the judgments of the Supreme Court in National Insurance Co.Ltd. v. Mubasir Ahmed & Another [2007 AIR SCW 1265], Kamla Chaturvedi v. National Insurance Co. [2008(4) KLT 862 (SC)] and Palraj v. Divisional Controller, NEKRTC [2010-JT-10-94]. They are all judgments rendered by two Judges Benches. No doubt, they tend to support the case of the appellant. However, we notice that the question engaged the attention of the Apex Court and a bench of four judges in Pratap Narain Singh Deo v. Srinivas Sabata [(1976)1 SCC 289] held as follows : “It is wrong to contend that the compensation had not fallen due until it was 'settled' by the Commissioner under Section 19 by his impugned order dated May 6, 1969. The employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which admittedly arose out of and in the course of employment. There was no suspension of the compensation pending settlement. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the MFA 185/2011 -4- compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. So in the present facts and circumstances the Commissioner was fully justified in making an order for the payment of interest and the penalty.” It is no doubt pointed out that the said judgment related to a scheduled injury and the facts were different. Thereafter, similar question arose before this Court in National Insurance Company Ltd. v. Rekha [2007(4) KLT 386]. Therein also, the decision in National Insurance Co.Ltd. v. Mubasir Ahmed & Another [2007 AIR SCW 1265] was considered by the Division Bench and it was interalia held as follows : “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay interest from the date of award only on the basis of the facts of that case. Wide powers vested in the Hon'ble Supreme Court under Art.142 of the Constitution of India are not available to the Tribunal or even to the High Courts while deciding a statutory appeal. (See the observations in Delhi Development Authority v. Skipper Construction Co.(P) Ltd. (AIR 1996 SC 2005). We are bound by statutory provisions and law declared by the Apex Court as mandated by Art.141 of the Constitution as held in Suganthi Suresh Kumar v. Jagdheesan (2002) 2 SCC 420). When there is conflict between the decisions of the Supreme Court, decision of the larger Bench will prevail (See : Mattulal v. Radhe Lal (AIR 1974 SC 1596). In view of the statutory provisions and larger Bench decision, we see no ground to interfere in that part of the order in awarding interest from the date of accident. We also note that this ground was not raised before the Commissioner or even in MFA 185/2011 -5- the appeal memorandum, but only raised as an additional ground by filing petition dated 7.6.2007 in the appeal filed in the year 1998. However, we see no ground to interfere in the impugned award and hence this appeal is dismissed.” However, it is pointed out that the matter is pending in appeal before the Supreme Court against the aforesaid judgment of the Division Bench of this Court. 5. The same view was taken by another Division Bench in an employer's appeal in Harrisons Malayalam Ltd. v. P.K.Ashraf and Others [2009(1) KHC 799 (DB)]. In the light of the said legal position, we do not find any merit in the contention of the appellant. We also notice that this is a case of death. We see no merits in the appeal and it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS