IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 MFA.No. 123 of 2008() ------------------------------- WCC.81/2000 of COMMISSIONER FOR WORKMEN'S COMPENSATION,ERNAKULAM .................... APPELLANT(S): (OPPOSITE PARTY IN WCC NO.81/00) --------------------- SUBAIR, S/O. KAJA SUBAIR, JAMEELA MANZIL NEAR MAHILALAYAM, THOTTUMMUGHAM, ALUVA. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENT(S): RESPONDENT(APPLICANT IN WCC NO. 81/2000) ------------------------- V.R.JAYAN, S/O. RAMAN, VALUMPARAMBIL HOUSE, THAVARKADU, VARAPUZHA. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MFA No.123 OF 2008 ===================== Dated this the 12th day of December 2008 JUDGMENT This appeal is preferred against the order of the Commissioner for Workmen's Compensation, Ernakulam in WCC No.81 of 2000. The claimant before the said Commissioner sustained injuries while working with the mixture machine at the time of construction of a multi-storeyed commercial building at Aluva. He sustained crush injuries with amputation of two fingers and he was treated in the Specialized Hospital, Ernakulam. His claim was that he was drawing an income of Rs.3,040/-per month and was aged 29 years at the time of accident. The opposite party, viz., the appellant herein contended that he was working in a shop in Saudi Arabia, but admitted that the building was constructed by him in Aluva. According to him, the construction work was done by Sri.K.K.Reghu and the applicant was not engaged by the opposite party. The court below after consideration of the materials held that there is nothing to prove that he had contracted out the work to somebody for construction and that the applicant was an employee under that contractor. Therefore the Commissioner found MFA 123/2008 -:2:- that the applicant was a workman under the Act and ordered compensation. He took the income at Rs.2,000/- applied appropriate index multiplier and awarded the compensation with 12% interest. It is against that decision, the appellant has come up in appeal. 2. Learned counsel for the appellant very strongly contends before me that in the light of the materials supplied before the Commissioner there is nothing to connect the applicant with the opposite party and therefore there is no employer-employee relationship and so he is not entitled to claim any compensation from the appellant. Learned counsel also would submit that he was not a person who was constructing the building. Learned counsel would also contend that he was an employee in gulf and therefore he cannot be categorized as an employer at all. Persons working in gulf, construct building in their native place and we find that helped by the relatives or somebody and the building will be in progress. When a commercial building is contracted out for construction there must be some materials to show that the construction has been entrusted with a person under a contract. A person need not be in the spot for the purpose of constructing a building. Admittedly the site belonged to him and a commercial building was constructed by him and when these things are proved, the burden is squarely upon him that he had entrusted the contractor. Even he did not MFA 123/2008 -:3:- mount the box to tender any evidence in support of the said contention raised in the written statement. In a case coming up for appeal under the Workmen's Compensation Act really, there must be a question of law and even if it is construed that misreading or misappreciation of evidence can be treated as a question of law that would not arise in this case for the reason that no contra evidence is tendered at all in this case. When a work is in progress people will be entrusted to call workers and the construction work will go on. That does not mean that a person entrusted to call a particular person to work will become the employer and the owner can scuttle away from the burden which is caused on him by law. Therefore I concur with the finding of the Commissioner and hold that he is entitled to claim compensation as a workman under the opposite party. 3. The next question is regarding quantum. The Commissioner has properly adopted the wages and calculated the compensation. So, the amount granted also does not call for any interference. Learned counsel would contend that interest should be granted from the date of order and not from the date of accident and for the said purpose he had relied on the decision of the Apex Court reported in National Insurance Co.Ltd.v. Mubasir Ahmed and another (2007 AIR SCW 1265). A Division Bench of this Court had occasion to consider the question of interest wherein a MFA 123/2008 -:4:- detailed discussion had been made and the Division Bench held that the Apex Court in the decision reported in Pratab Narain Singh v. Srinivas(AIR 1976 SC 222) had held that the date of entitlement is from the date of accident and the Division Bench further held that when there is a conflict, the decision of the larger Bench will prevail and therefore upheld the contention that the person will be entitled to claim interest from the date of accident. Learned counsel then would contend regarding some laches on the part of the claimant. I find from the certified copy of the proceedings that the application was dismissed for default on 30.9.2005 and it is seen that it has been restored by 23.11.2005. Granting of adjournments shall not be taken as a ground to deny interest but for the period between 30.9.2005 and 23.11.2005. The default is on the part of the claimant and during that period, interest need not be granted. Therefore I confirm the order of the Commissioner with the only modification that the respondent will not be entitled to any interest on the amount ordered from 30.9.2005 to 23.11.2005. MFA is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/- MFA 123/2008 -:5:-