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2013 DIGILAW 364 (KER)

GANGAN v. CHRISTIN RAJ T. L.

2013-04-09

BABU MATHEW P.JOSEPH, S.SIRI JAGAN

body2013
JUDGMENT : S. Siri Jagan, J. The appellant in this MFA is the applicant in WCC No. 82 of 2005 before the Commissioner for Workmen's Compensation, Thiruvananthapuram. He suffered injuries, allegedly while he was working as a loading and unloading employee in a lorry owned by the first respondent and insured with the second respondent, on account of the landslide in a quarry and rocks falling on him and others in the course of such employment. He suffered injuries and disability in the accident. He filed the application seeking compensation from the first respondent for the disabilities suffered by him in the accident. The Workmen's Compensation Commissioner, after taking evidence, dismissed the application on the ground that the appellant was not a worker in the lorry owned by the first respondent but was a worker in the quarry. The said order of the Workmen's Compensation Commissioner is under challenge in this appeal. The appellant's contention is that the appellant had adduced evidence in the form of deposition of himself as well as a co-worker to the effect that both the witnesses were employees in the lorry. Although the respondents cross-examined them elaborately, the respondents could not shake the evidence of the appellant and the co-worker. The respondents did not adduce any evidence in support of their contention that the appellant was the worker in the quarry and was not a worker in the lorry. Therefore, the Commissioner could not have validly held that the appellant was not a worker of the first respondent. Consequently, the appellant is entitled to claim compensation from the first respondent himself is the contention of the appellant. It is further submitted that the appellant had adduced evidence to show that he was earning more than Rs. 4000/- per month and he had produced Ext. A3 disability certificate proving disability to the extent of 30%. Therefore, the appellant is entitled to appropriate compensation calculated on that basis, is the further contention raised. 2. The counsel for the first respondent would contend that the evidence on record conclusively proves that the appellant was not an employee of the lorry owned by the first respondent but was actually the worker in the quarry itself from where the lorry was loading rubbles. According to them this is fully supported by the First Information Statement attached to Ext. R1 copy of the FIR registered by the police. According to them this is fully supported by the First Information Statement attached to Ext. R1 copy of the FIR registered by the police. In the First Information Statement, it has been categorically stated that the appellant was an employee of the quarry, is the contention raised. It is also submitted that the appellant has not produced any documentary evidence to prove that the appellant was a worker in the lorry. 3. We have considered the rival contentions in detail. 4. It is common knowledge that usually loading and unloading workers will not be given any appointment orders by their employers for engaging them. In fact, such workers will not get any document from the employers proving their employment. Therefore, the mere absence of documentary evidence to prove the appellant's employment with the first respondent does not conclusively prove that the appellant is not an employee of the first respondent. The appellant gave evidence himself and categorically stated that he was a loading and unloading employee employed by the first respondent in his lorry, which was insured with the second respondent. The respondents have elaborately cross-examined him. But, they could not shake his evidence. The appellant supported his evidence by the evidence of a co-worker examined as AW 2. He categorically stated that he was an employee under the first respondent in his lorry and that the appellant was a co-worker in the very same lorry alongwith him. He was also elaborately cross-examined by the respondents and they could not shake his evidence also. The respondents did not chose to adduce any evidence whatsoever before the Commissioner to prove their contention that the appellant was not employed by the first respondent in his lorry. The first respondent did not go to the box to state that the appellant was not his employee to stand cross-examination on that aspect. Apparently, the Commissioner was under the impression that it is for the appellant to cross-examine the first respondent, which is not the law, while stating that the appellant did not cross-examine the first respondent, although the first respondent did not offer himself as a witness to prove his case. If the first respondent wanted to prove that the appellant was not his employee, it was for him to go to the box to say so and stand cross-examination on that point. The first respondent did not do that. If the first respondent wanted to prove that the appellant was not his employee, it was for him to go to the box to say so and stand cross-examination on that point. The first respondent did not do that. As such, the oral evidence available before the Commissioner categorically proved that the appellant was an employee of the first respondent in his lorry insured with the second respondent. 5. The evidence relied upon by the Commissioner and the respondents is Ext. R1 First Information Report. In Ext. R1 First Information Report, the police has recorded the statement of one Bhanu. There is no evidence as to who is the said Bhanu, and what was his source of information regarding the employment details of the appellant. The respondents have not chosen to examine the said Bhanu to prove his statement about the employment of the appellant in the First Information Statement. Of course, in the First Information Statement, Bhanu says that the appellant, along with several others, were employees in the quarry. But, interestingly the said Bhanu states in the First Information Statement that the first respondent is also an employee in the quarry. In such circumstances, the First Information Report cannot be taken on face value unless there is some other evidence in support of the contents of the First information Statement. Moreover, insofar as the lorry was loading rubbles inside the quarry what the said Bhanu may have stated can very well be that all of them were working in the premises of the quarry at the time of the accident and may not be that the appellant was working as an employee of the quarry. Therefore, we are of opinion that there is sufficient evidence before the Commissioner to prove that the appellant was an employee of the first respondent in his lorry insured with the second respondent-Insurance Company and he suffered the injuries and disability in the course of his employment in the lorry as an employee of the first respondent. We hold so. 6. The Commissioner has not chosen to fix the compensation payable to the appellant. We are not inclined to remand the matter for the purpose to the Commissioner asking the appellant to undergo the travails of another prolonged litigation before the Commissioner. We are inclined to fix the compensation payable to the appellant based on the materials available on record. 6. The Commissioner has not chosen to fix the compensation payable to the appellant. We are not inclined to remand the matter for the purpose to the Commissioner asking the appellant to undergo the travails of another prolonged litigation before the Commissioner. We are inclined to fix the compensation payable to the appellant based on the materials available on record. The appellant has proved in his evidence that his monthly income is Rs. 4500/- which is not controverted by the respondents. The maximum salary which can be taken into account for the purpose of calculating compensation under the Workmen's Compensation Act for permanent disability is Rs. 4000/-. 60% of that amount has to be taken into account for calculating compensation for permanent disability. The appellant had produced Ext. A3 disability certificate issued by a doctor certifying 30% disability. The appellant has given evidence that he was 60 years old at the time of accident. For a 60 year old person, the factor to be adopted under Schedule IV of the Workmen's Compensation Act for calculating compensation for permanent disability is 117.41. Calculating on the basis of these inputs, the appellant would be entitled to compensation of Rs. 84,535/- (4000 x 60 x 117.41 x 30/100 x 100). Accordingly, the appellant would be entitled to recover Rs. 84,535/- as compensation for the disability suffered by him in the accident in the course of employment with the first respondent. Since the lorry has been insured with the second respondent, the second respondent is liable to indemnify the first respondent for payment of the compensation. In the above circumstances, the second respondent is directed to deposit the compensation amount with 12% interest from 15/01/2005 which is the date of the accident within a period of two months from today, which shall be disbursed to the appellant immediately on such deposit. The appeal is allowed as above.