IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 MFA.No. 20 of 2011() ------------------------------ WCC. NO.395/2008 of COMMISSIONER FOR WORKMEN'S COMPENSATION, PALAKKAD .................... APPELLANT/OPPOSITE PARTY: ---------------------------------------------- T. ABOOBACKER, PROPRIETOR THODIKKODAN MANUFACTURE HALLOW BRICKS WALL BLOCK AND INTER LOCK, ALAN ALLUR ROAD, VATTATHOOR, PALAKKAD-678 601. BY ADV. SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. RESPONDENT/APPLICANT: ----------------------------------------- RAJEENA, W/O. KHADER PATTAKKAL HOUSE, KACHERIPPADI, ALANALLUR, PALAKKAD- 678 601. BY THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- M.F.A(WCC).No.20 OF 2011 ------------------------------------ Dated this the 14th day of February, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1. This appeal is against an order passed under the Workmen's Compensation Act, 1923. Learned counsel for the appellant was heard quite in extenso. It appears that on 24.1.2011, the Bench had ultimately took the view that prima facie, there is no question of law arising for decision much less the substantial question of law and the appellant was given an opportunity to make further submissions on the basis of materials, if any, that could be placed. 2.Following that, today, we have heard learned counsel for the parties on the basis of the copies of materials which were available before the Commissioner. MFA.20/11 2 3.The only argument advanced before us is regrading the finding that the appellant is liable to pay on account of the fact that the respondent applicant was an employee of the appellant. The plea is that the applicant was never a worker of the appellant and the finding to the contrary in issue Nos.I and II is vitiated on different counts. Learned counsel for the appellant argued that the Commissioner acted illegally in appreciating materials and the conclusions arrived at are wholly unavailable on the materials. He also argued that the documentary evidence tendered by the appellant as Exts.B1 to B4, viz., the Wage Register, Muster Roll, Service Record and Register of wages, if looked into in proper persuasion, would have shown that the respondent was never employed by the appellant. He criticized the approach of the Commissioner in having fastened the liability on the premise that the appellant had spent about Rs.35,000/- towards medical expenses of the respondent and concluding that he would not have done it but for the fact that the respondent was actually employed by the appellant. MFA.20/11 3 Learned counsel says that the humanitarian support given by his client to the respondent in a time of need owing to the injury is utilised as a piece of evidence. 4.Reading the findings in issue Nos.I and II as a whole, we are of the view that the expenditure met by the appellant towards treatment of the respondent was taken only as a corroborative material and liability is not fastened on the basis of such finding alone. We find that the Commissioner had accepted the deposition of AW3 who stated that he was an eye witness to the incident and that he was an employee of the appellant at the relevant time. The Commissioner found that the Wage register, Muster roll, Service records etc., relied on by the appellant, were not decisive because even the appellant as BW1 had deposed before the Commissioner that Ext.B2 was in relation to a hollow bricks unit, but the accident in question occurred in relation to a unit making mud blocks and interlocking bricks which is a separate activity. The fact that the mud block unit was not MFA.20/11 4 registered with the labour authorities is not disputed. Though the appellant states that the hollow bricks unit and the mud brick unit are one and the same, we are not inclined to disagree with the findings of the Commissioner because the materials produced by the appellant as Exts.B1 to B4 would show that the registration was with reference to the activities of a hollow brick unit. We also find even from the inspection note Ext.B5 that the Labour Department had stated that the relevant rules were violated by the appellant. No proper Muster roll, Service register etc. are maintained. Therefore, the credibility of Exts.B1 to B4 cannot override the deposition of AW1, the applicant, before the Commissioner corroborated by the testimony of AW3, who spoke that he was a worker of the appellant and that he saw the incident. He vividly explained before the Commissioner as to how the accident occurred; that the applicant was feeding the machine with mud while another worker Malathi unfortunately brought down the liver of the machine and thus the applicant's hand was injured. MFA.20/11 5 We do not find any error of law much less the substantial question of law regarding issue No.II and the appreciation with all evidence by the Commissioner as regards the accident or regarding the existence of an employer- employee relationship between the applicant workman and the appellant employer. We are also shown the decision reported in Raveendran v. Somavally [1995(2) KLT 125], which lays down the proposition that the question as to whether or not the workman was at the time of the accident employed by the employer and whether or not the accident resulting in injury took place during the course of employment are all questions of fact on which no appeal lies under Section 30. The appeal fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.17/2.