IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MFA.No. 389 of 2003(C) ---------------------- WCC.77/1997 of W.C.C.,KOZHIKODE .................... APPELLANT: 2ND OPPOSITE PARTY: -------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, CALICUT NEW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT: APPLICANT: ------------------------------------------ E.K.CHANDRAN, S/O. CHATHUNNI, KAKKUR MALAYIL P.O. IRUVALLUR. VIA. CHELANNUR, KOZHIKKODE DISTRICT. (NO RELIEFS ARE CLAIMED AGAINST THE 1ST OPPOSITE PARTY IN THE ABOVE CASE AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL) BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008 ALONG WITH MFA NO. 392 OF 2003 AND MFA NO. 393 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1914/2003 IN MFA NO.389/2003 DISMISSED 27/05/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NOs. 389, 392 & 393 OF 2003 = = = = = = = = = = = = = = = Dated this the 27th day of May 2008. J U D G M E N T These appeals are preferred against the award of the Workmen's Compensation Commissioner, Kozhikode in W.C.C 77/97, WCC 327/97 and WCC 98/97. A perusal of the awards would show that the applicant in WCC 77/97 is employed as a loading and unloading worker by the first opposite party therein and had sustained injury on account of the careless driving of the vehicle by the driver of the lorry which resulted in the sustainment of fracture of the tibia and a lacerated wound on the temporal area. In MFA 392/03 it is contended that he also sustained injuries in the course of employment, fracture of the leg, metatarsal. In WCC 98/97 it is contended that on account of the negligence of the driver the claimant therein also sustained fracture of the tibia and fracture of the medial Malleolus. In all these cases the contention is to the effect that they were all employed by the first opposite party M.F.A.NOs. 389, 392 & 393 OF 2003 -2- and the accident took place on account of the negligence of the driver and therefore they are entitled to claim compensation. 2. It was strongly resisted by the insurance company on the ground that there was no employer-employee relationship between the claimants and the first opposite party and further the mode of calculation of the compensation is excessive and therefore all the awards require interference. 3. The learned counsel for the appellant would contend before me that the Workmen's compensation Commissioner has gone wrong in finding the employer-employee relationship as well as the quantum. I have perused the awards and other connected papers. On the side of the applicants all were examined and the insurance company examined the investigator who has deposed that the owner has deposed that the vehicle was in a workshop at the time of the alleged accident. A statement given by one person to another cannot be relied upon as an absolute evidence unless the person who is stated to have made such a statement is made available for cross-examination. Otherwise it will have only the impact of a M.F.A.NOs. 389, 392 & 393 OF 2003 -3- hearsay evidence as stated in the Indian Evidence Act. There was nothing wrong on the part of the insurance company to summon the owner of the vehicle to prove that the vehicle was in the garage during the relevant period of time. There is also a statutory duty cast upon the owner of the vehicle to inform the Regional Transport authorities regarding placing the vehicle in a garage and not putting it into use as per the rules. No documentary or acceptable oral evidence is worth coming for establishing that the vehicle was in the garage at the relevant date of accident. 4. It has to be remembered that three persons sustained injuries in the nature of fracture, First Information Report was immediately registered and a vehicle inspector's report was prepared which would indicate that the factum of the vehicle being in the garage cannot be accepted. There is no real cross-examination or convincing evidence to prove that what the claimants are speaking about is not true. Therefore the finding of the Compensation Commissioner on that ground cannot be found fault with. M.F.A.NOs. 389, 392 & 393 OF 2003 -4- 5. So far as the employee-employer relationship is concerned when the petitioners assert that they are the workers and the person under whom they claim employment is a party before the Court and he does not give any evidence, the preponderance of probabilities will only weigh one side and therefore one cannot find fault with the Court below for finding on the employer-employee relationship as well. 6. Lastly, regarding the claim of compensation. Under all these cases claimant therein had sustained fractures. They had been treated as an inpatient in the Medical College Hospital and the Asst. Professor had issued disability certificates showing the professional disability of the concerned. Even then rightly or wrongly the Tribunal has reduced the percentage of disability and had calculated the compensation. It had only taken a reasonable wage for loading and unloading workers as Rs.2,000/- and applied a proper multiplier and calculated the compensation. One cannot find that the said calculation is also incorrect. So I do not find any convincing materials to hold that the award passed by the Workmen's Compensation Commissioner suffers M.F.A.NOs. 389, 392 & 393 OF 2003 -5- from any serious legal infirmity much less any infirmity. Therefore I do not find any substantial question of law is involved in these appeals and therefore all these MFAs are dismissed without costs. M.N. KRISHNAN, JUDGE. ul/- M.F.A.NOs. 389, 392 & 393 OF 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A.NOs. 389, 392 & 393 OF 2003 = = = = = = = = = = = J U D G M E N T 27th May, 2008.