IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 MFA.No. 49 of 2003(A) ------------------------------ WCC.94/1996 of W.C.C.,KOTTAYAM .................... APPELLANT/ 2ND OPP.PARTY: ------------------------------------------- NEW INDIA ASSURANCE COMPANY LTD., PALA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT AND OPP.PARTY-1: ---------------------------------------------------------------------- 1. BHAVANIAMMA, W/O.LATE SREEDHARAN PILLAI, THAYYIL HOUSE, KONDOOR, ARUVITHURA, ERATTUPETTA. (* DIED) 2. SUNIL V.THOMAS, S/O. V.E.THOMAS, VELLOOKUNNEL HOUSE, POONJAR POST, PERUNILAM, KOTTAYAM DISTRICT. * ADDL. R3 TO R5 IMPLEADED ADDL. R3: DR. T.S.RAJASEKHARAN NAIR, NIRANJANA (H), GOLFLINKS ROAD, KAVADIYAR POST, THIRUVANANTHAPURAM. ADDL. R4: BABU.T.S., THAYYIL (H) @ PARACKAL, KONDOOR, ARUVITHURA POST, ERATTUPETTA. ADDL. R5: SMT.JAYA, W/O.RADHAKRISHNAN, PANATHAPLACKAL (H), KANAM POST, KANJIRAPPALLI, KOTTAYAM. * ADDDITONAL RESPONDENTS 3 TO 5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT, VIDE ORDER DATED 22/07/2008 ON I.A. NO.678/2008. BY ADV. SRI.P.SANJAY - R1 SMT.A.PARVATHI MENON - R1 SRI.ANUB ALIAS - R1 SMT.PRIYA RAMESH - R1 SRI.JACOB THOMAS - R2 SRI.THOMAS T.VARGHESE - ADDL.R3 TO 5 SMT.V.T.LITHA - ADDL.R3 TO 5 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.49/2003 ORDER ON C.M.P. NO.219/2003 IN M.F.A NO.49/2003 DISMISSED 28/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // P.A. TO JUDGE Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 49 OF 2003 = = = = = = = = = = = = = = = Dated this the 28th day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the Workmen's Compensation Commissioner, Kottayam in W.C.C.94/96. One Vinod while driving a car bearing No.KEO 707 with the owner of the car as an occupant met with an accident as a result of which he died. His mother filed an application for compensation and she is also dead now and her legal representatives are the respondents herein for sustaining the claim awarded by the Compensation Commissioner. The insurance company is the appellant. The alleged employer is also represented by a learned counsel. 2. A young man died in a road accident and the learned counsel for the insurance company would contend before me that immediately after the accident the employer had given a statement describing the deceased Vinod as his friend who was driven the vehicle. It is also submitted by him M.F.A. 49 OF 2003 -:2:- that the employer filed a claim before the insurance company where it is specifically stated that the deceased was only a friend. It is also submitted that to start with he filed a written statement contending that the deceased was only a friend but later filed amendments and contended that he was an employee and the relationship was that of an employer- employee. These documents were attempted to be overcome by the Compensation Commissioner on the basis of an affidavit filed by the alleged employer. The law of evidence is clear that the person must be put to cross-examination to elicit the facts. It is true that a person may make different statements but when he is able to explain under what circumstances a particular statement was given and when he is subjected to cross examination then one can say that he had explained the reason for making a particular statement at a previous stage. Just filing an affidavit and taking inconsistent stand at different stages will not be a substitute for evidence. It will only add confusion and therefore the best method was for him to mount the box, give evidence and then M.F.A. 49 OF 2003 -:3:- face the cross-examination and explain the reasons as to why he had given previous statements wherein he had described Vinod as his friend. I do not want to dwell deep into the entire matter because any observations made here and there may affect the parties. Just because the alleged employer has made a statement it will not bind the employee if there is convincing evidence from the side of the employee regarding the employer-employee relationship. Therefore I find the matter requires reconsideration and the two questions of law formulated requires consideration only on the basis of evidence that has to be made available and the approach made now by the Commissioner does not appear to be correct and therefore it can be said that there is a question of law involved in this appeal. Therefore I set aside the order passed by the Commissioner remit the case back to the Commissioner with the following directions. 3. The alleged employer is directed to appear before the Commissioner and give evidence if he thinks it proper and explain the circumstances under which the statement had M.F.A. 49 OF 2003 -:4:- been made with respect to Vinod as a friend. Similarly, the legal representatives of the deceased Bhavaniamma are also entitled to adduce evidence in support of the contention as to the specific relationship between Sunil V. Thomas and Mr.Vinod. The insurance company is also permitted to adduce evidence if they want to adduce the same. Thereafter the Commissioner shall weigh the evidence adduced in the matter and decide the case in accordance with law. Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance. M.N. KRISHNAN, JUDGE. ul/- M.F.A. 49 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 49 OF 2003 = = = = = = = = = = = J U D G M E N T 28th July, 2008.