IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 MFA.No. 545 of 2003(A) --------------------- WCC.4/1992 of W.C.C.,KOLLAM .................... APPELLANT: 3RD OPPOSITE PARTY --------------------------------------- ALIYARUKUNJU, S/O. ABDUL KHARIM, SUJA MANZIL, NJARAKKONAM, MADAVOOR. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENTS: APPLICANTS AND OPPOSITE PARTIES 1 & 2 ------------------------------------------------------------------- * 1. AWA UMMAL, CHARUVILA PUTHEN VEEDU, KUZHIYAM, AKONAM MURI, CHADAYAMANGALAM VILLAGE. ** 2. SHEEBA, CHARUVILA PUTHEN VEEDU, KUZHIYAM, AKONAM MURI, CHADAYAMANGALAM VILLAGE. *** 3. SHAFI, CHARUVILA PUTHEN VEEDU, KUZHIYAM, AKONAM MURI, CHADAYAMANGALAM VILLAGE, MINOR, REPRESENTED BY THE FIRST RESPONDENT. 4. RAFI, S/O. YAHIA RAWTHER, KADAYLAZHIKAM VEEDU, CHIRAVOOR MURI, MANKODU VILLAGE, KADAKKAL. 5. GEORGE G., SAROJA VILLA, CHADAYAMANGALAM, CHADAYAMANGALAM VILLAGE. *CAUSE TITLE OF MFA IS AMENDED BY SUBSTITUTING “ARIFA BEEVI, C/O ABDUL MAJEED, ANZIYA MANZIL, AKKONAM MURI, MANJAPRA PO, PARAVOOR, AYOOR (VIA), KOLLAM” AS THE FIRST RESPONDENT VIDE ORDER DTD.1.12.04 ON I.A.1454/03. ** IT IS RECORDED THAT RESPONDENTS 2 AND 3 HAVAE ATTAINED MAJORITY BEFORE FILING THE APPEAL VIDE ORDER DATED 5.11.07 IN MEMO (C.F.NO.11413/07) BY ADV. SRI.P.RAMAKRISHNAN FOR R5 SRI.JOHNSON GOMEZ FOR R4 SRI.ANCHAL C.VIJAYAN FOR R.3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2008, ALONG WITH MFA NO. 628 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.79 OF 2003 IN M.F.A. NO. 545 OF 2003 DISMISSED 1/9/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NOs. 545 & 628 OF 2003 = = = = = = = = = = = = = = = Dated this the 1st day of September, 2008. J U D G M E N T These appeals are preferred against the judgment of the Workmen's Compensation Commissioner, Kollam in W.C.C.4/92. The appellant in MFA 545/03 is the third opposite party and the appellant in MFA 628/03 is the first opposite party before the Compensation Commissioner. The case was filed on account of the death of the workman by name Kurashya due to an accident arising out of and in the course of employment. She was aged 40 years and was employed and on 4th May, 1991 she received personal injuries on account of a slippery while she was carrying rubber wood on her head which ultimately resulted in her death. Now, the Compensation Commissioner after elaborately considering the entire materials fixed the compensation amount at Rs.66,301/- and directed the third opposite party to pay the amount with 6% interest and also held that the third opposite MFA Nos.545 & 628 of 2003 -2- party is entitled to be indemnified by the first opposite party as provided under Section 12(2) of the Act. 2. Learned counsel for the appellant in MFA 545/03 would strongly contend before me that the 2nd opposite party before the Compensation Commissioner is the owner of the property and therefore he has to be considered as a principal employer and so he must be made liable to pay the amount. The learned counsel had made available for perusal the agreement executed between the 2nd opposite party and the 3rd opposite party on 15.1.90. The document would show that the 2nd opposite party had given the 3rd opposite party right to take usufructs from 900 rubber trees and also for slaughter tapping for a consideration of Rs.100065/- out of which some amount has been paid. Subsequently, on 14.3.91 the first opposite party and third opposite party entered into an agreement whereby the 3rd opposite party had given a right to the first opposite party to cut and remove the trees standing in the property. It was at that point of time when the deceased was working under the first opposite party, the MFA Nos.545 & 628 of 2003 -3- accident took place and claim for compensation has been filed. A reading of the first agreement entered into between the 2nd opposite party and the 3rd opposite party would convincingly establish that the right to cut the trees as well as the right to enjoy the usufructs derived from the trees were sold in favour of 3rd opposite party for a valid consideration thereby the 2nd opposite party divested his right and interest over that 900 trees that stood in the property. As per the terms and conditions of the agreement the 2nd opposite party had only a right to receive Rs.1,00,065/- and the other rights had been transferred in favour of 3rd opposite party . So the 3rd opposite party thereby got the absolute right of slaughter tapping plus taking the usufructs from the rubber trees. While it was so, in 1991 March, he enters into another agreement with the first opposite party whereby he granted or gave that right to cut and remove the trees in favour of the first respondent. So the process of tapping the trees and taking the usufructs by virtue of these two agreements had fallen primarily on the 3rd opposite party and then on the first opposite party. The owner MFA Nos.545 & 628 of 2003 -4- of the property did not retain any right or interest in the trees to be tapped or slaughter tapped and therefore he had totally divested himself of his right over those trees. It was in the process of taking one of the cut trees and transporting, the deceased sustained injuries and thereby it became an employment injury in the process of cutting and removing rubber trees and for which the right has been confirmed primarily upon the 3rd opposite party and secondly on the first opposite party. Therefore the contention of the learned counsel for the appellant in MFA 545/03 that he is not liable and it is the owner of the property who is liable cannot be accepted by any stretch of imagination. So far as the first opposite party is concerned it was strictly under his employment she has been working and the accident took place during the course of employment. So far as the deceased is concerned, the principal employer is the 3rd opposite party and the immediate employer is the first opposite party. Therefore, granting of compensation by the Compensation Commissioner directing it to be paid by the 3rd opposite party first and later MFA Nos.545 & 628 of 2003 -5- to get it indemnified by the first opposite party cannot be found fault with and the award is legally sustainable and perfectly valid and correct. Therefore, I do not find any merit in this appeals and therefore they are dismissed. 3. The Workmen's Compensation Court shall take immediate steps to see that the amount is disbursed to the legal representatives for the reason that they have to knock at the doors of justice for a period of more than 17 years in the process of litigating. M.N. KRISHNAN, JUDGE. ul/- MFA Nos.545 & 628 of 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A.Nos. 545 & 628/2003 = = = = = = = = = = = J U D G M E N T 1st September, 2008.