IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Ins.APP.No. 99 of 2007() --------------------------------- IC.107/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/APPLICANT ----------------------------------- P.J.SEBASTIAN, PROPRIETOR, M/S. KERALA OIL COMPANY, PATHIRAPPALLY, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT/ RESPONDENT ------------------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHADEEP BHAVAN, SWARAJ ROUND NORTH, THRISSUR-20. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 17/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== INAP No.99 OF 2007 ===================== Dated this the 17th day of November 2008 JUDGMENT This appeal is preferred against the judgment of the Employees' Insurance Court, Alappuzha in I.C.No.107 of 2003. It was an application filed for declaration that the applicant establishment is not liable to be covered under the E.S.I.Act. Admittedly, the appellant establishment is a petrol pump engaged in selling high speed diesel, motor spirit and various types of motor lubricants in packed containers. It is contended that the pumping of petrol products is not a manufacturing process. On the other hand, the insurance Corporation would contend that the petroleum products are pumped with systems using 7 ½ H.P. motors and employed 10 persons. On analysis of the entire materials, the E.I.Court came to the conclusion that the applicant establishment is liable to be covered under the Act and it also gave directions to fix the amount. It is against that decision the applicant before that court has come up in appeal. 2. Being a petrol pump, motor is installed for pumping out the petrol for the purpose of sale. It has been held that pumping of petrol and diesel INAP 99/2007 -:2:- with the aid of power is covered under the definition of 'factory' and hence covered by the Act. This was decided in the decision reported in M/s.Qazi Noorul Hasan Hamid Hussain Petrol Pump and another v. Deputy Director, Employees' State Insurance Corporation, Kanpur(2003) LLR 476). A Division Bench of this Court also had taken the same view. It is contended by the learned counsel for the appellant that the premises is taken for a period of 30 years with the permission to conduct a petrol pump and therefore it is only a licensee and so it is not liable to be covered. Taking the premises on lease or license and conducting a petrol pump by employing one's own employees and the petroleum corporation is not having any control over the employees would only mean that the establishment is run by the person who has taken it for lease or license. Here is a case admittedly this person is selling out petrol by employing his own persons and receiving commission per litre for the said purpose. So he will squarely come under the definition of employer and also the provisions of Section 2(12) of the Act also is attracted and thereby as more than 10 persons were employed and power is used for pumping the diesel or petrol it will come within the ambit of a 'factory' as well and therefore it is liable to be covered under the Act. This is what has been precisely done by INAP 99/2007 -:3:- the E.I.Court. Therefore the appeal lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-