IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MFA.No. 136 of 2009() --------------------- WCC.2/1998 of W.C.C.,KOLLAM .................... APPELLANT/OPPOSITE PARTY ---------------------------- ANIL THOMAS, MOOLEKONIL, PIRAVANTHOOR P.O.,PATHANAPURAM. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN SRI.N.JAMES AUGUSTINE SMT.SOLIMMA ANTONY RESPONDENT/APPLICANT ------------------------ SMT.KALYANI,W/O.LATE GOPI, CHARUVILA MELETHIL VEEDU, VALIYAKAVU,CHALIYAKARA P.O.,PUNALUR. ADV. SRI.AJAYA KUMAR. G THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J --------------------------------------- M.F.A. NO. 136 OF 2009 --------------------------------------- Dated this the 21st day of December, 2009 JUDGMENT 1. This is an appeal preferred against the award of the Commissioner for Workmen's Compensation, Kollam in W.C.C No. 2 of 1998. The applicant is the widow of one Gopi. Mr. Gopi, while plucking arecanuts, fell down from the arecanut tree and succumbed to the injuries. The legal representative, namely wife has moved an application for getting compensation. According to the applicant, Sri. Gopi was working as a worker under the respondent Anil Thomas. On the other hand the respondent filed a written statement, in which it is contended that the fall took place on account of the negligence of the deceased Gopi and he was not employed by him to pluck the arecanut. Mr. Gopi was in drunken stage and for his own use, he climbed up the tree and fell down and therefore there is no employer-employee or worker employer relationship between Gopi and the appellant namely Anil Thomas. In the Trial Court AW 1 to AW 4 were examined and Exhibits A 1 to A 11 were marked. The apellant did not enter into the box nor did produce any document. After an 2 MFA NO. 136/2009 analysis of the evidence the court below held that Gopi was a worker of Anil Thomas. Fixing age at 50 years, income at Rs. 1,000 had awarded the compensation. It is against that decision the appellent has come up before this court. 2. Heard the counsel on both sides. 3. The learned counsel for the appellant contended relying on a decision of this court reported in Thomas v. Babu (1995 (1)KLT 4) argued that the said Gopi was not a worker employed by the appallent and that he was only coming as a casual worker at the most and therefore, he would not come within the definition of “workman” defined under the Workmen's Compensation Act. The decision relied on by appellant would show that it was a case where the parties were working as a Clerk and a Teacher in a school. The plucking of coconuts was from their residential compound and therefore there was no trade or business conducted in coconut and therefore it was not in pursuance of the trade or business. It was also found that the deceased was called for the first time as a casual employee and therefore, taking note of the 3 MFA NO. 136/2009 entire circumstances, the court on an analysis on the factual matrix arrived at a decision that the injured was not a worker under the Workmen's Compensation Act. 4. Now it is to be understood that in order to entertain an appeal under Section 30 of the Workmen's Compensation Act, there must be a substantial question of law. Suppose there is total misappreciation of evidence or mis application of law then it can amount to a perverse finding, which in turn can be held as a substantial question of law in a matter of this nature. So in order to arrive at that point, it has become the duty of this court to analyse the materials to arrive at a decision. 5. The claimant examined four witnesses as AWS 1 to 4 . They have also produced Exhibits A1 to A11. AW1 is the widow of deceased Gopi. She deposed that her husband used go to Anil Thomas for plucking arecanut and on that unfortunate day also he had gone and the incident had taken place. It is true that she has admitted that he used to visit 4 MFA NO. 136/2009 local people also for the purpose of plucking nuts. AW 2 is one Gopalakrishnan. He has also deposed how the incident took place and the reason for the death of Mr. Gopi. AW 3 is one Vasu. He has deposed that he had taken Gopi to the hospital and Gopi died on his lap. He had also deposed that Thomas is having 10 acres of land and 300 arecanut trees. He further deposed that he had seen Gopi coming to the compound of Thomas to pluck arecanuts for him. AW 4 is one Panchami. She had also deposed about the factum of the incident. She would depose that Gopi was not regularly plucking nuts for Anil Thomas. Now this is the evidence available on the side of the applicants. 6. So far as the respondent is concerned, he does not mount the box at all. The appellant has no case that Mr. Gopi was called as a casual worker on the date of incident. His case is that he had come there to pluck some arecanuts for his own use and the appellant objected to it seeing him drunk and there after disobeying his words Gopi climbed the tree and fell down. 5 MFA NO. 136/2009 7. When a case is filed and the defence is set up, the matter has to be analysed and found out on the basis of the pleadings of the parties in the case. The court is not expected to travel beyond the pleading to understand the case of the parties. It appears that in the appellate stage after seeing the decision of the Division Bench of this Court, the appellant wanted to put up a case that Gopi was not a regular worker, but a casual worker. But there is no such pleading in the case. He did not even admit that Gopi was called to climb the arecanut tree. So it is in this back drop the approach of the court should have to be analyse the materials to arrive at a decision. When it is done, the evidence of AW 1 to 4 would reveal that Gopi was called by the appellant to pluck arecanut from his compound and in the process of the same, Gopi fell down and died. The witnesses also had deposed that Gopi was regularly being called as a plucker by the appellant. It is further to be stated at least at the first instance that is, at the time of inquest examination by the Additional District Magistrate, the appellant had stated that Gopi is a permanent worker and reported that the incident took place. The learned 6 MFA NO. 136/2009 counsel for the appellant would contend that being an unsigned statement, which will have the effect of only a statement recorded by the police under Section 161 and 162 of the Criminal Procedure Code and such statement can be used only for the purpose of corroboration or contradiction. There cannot be any quarrel about that preposition in a criminal proceeding. But the court is concerned in this case with a civil proceeding where the maker of this statement did not come to the court to deny that statement. Even though it gives some indication, I do not want to rely upon that statement for the reason that no oppurtunity is given to explain it away. But with the other evidence available and as the appellant did not have a case that he was only a casual employee then on analysing the materials the preponderance of probability lies with the applicant and therefore it has to be held that the court below was right in analysing the matter to find out that the deceased Gopi was a workman at the time of the incident, as defined under the Workmen's Compensation Act. Regarding the age, I do not find any leak proof materials, but in the inquest report recorded by the Magistrate 7 MFA NO. 136/2009 the age is shown as 50. But at the time of death of Gopi, the eldest son was aged only 22 years which probabalise that 50 may be the probable age. So from these discussions I hold that the court below has not erred in arriving at a decision fixing the liability on the appellant . The order does not suffer from any infirmity and therefore the appeal is dismissed. M.N.KRISHNAN, JUDGE rkc