Dismissed

State of Kerala v. Mohan.C

Kerala HC2 Aug 2018MFA (ECC)/135/2013

Case brief

AI extract

What is this about?

This First Appeal challenges the Commissioner's award of compensation to a forest labourer injured during tree cutting. The High Court held there was a principal employer relationship liable under Section 12 of the Act and upheld the compensation quantum, dismissing the appeal.

What did the court decide?

The First Appeal lacking merits was dismissed, and all pending interlocutory applications were closed.

State of Kerala Vs Mohan.C — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940

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MFA.No. 135 of 2013

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AGAINST THE ORDER IN WCC 71/2008 of W.C.C. & CONTRACT L.BOARD,TVM. DATED 12-10-2012

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APPELLANTS/ OPPOSITE PARTIES 1 & 2 :

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1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.

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2 THE DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, KONNI.

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BY SRI.SANDESH RAJA, SPL. G.P. FOR FOREST

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RESPONDENTS/ APPLICANT/ 3RD OPPOSTIE PARTY :

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1. MOHAN.C,

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S/O.AADICHAN, TREE CUTTER CUM LOADING LABOURER, KOLLAMVILAYIL VEEDU, VALIYAVYAKARA, KALLELI THOTTAM, ARUVAPULAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT - 689 691.

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2. ABDUL VAHID,

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S/O.ABDUL KASSIM, PALLIKIZHAKKETHIL, KUMMANNOOR P.O., IRAVON VILLAGE, KOZHENCHERY TALUK, PTHANAMTHITTA DISTRICT - 689 691.

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R1 BY ADV. SRI.M.R.SASITH

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R2 BY ADVS. SRI.SHABU SREEDHARAN

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SRI.TONY THOMAS (INCHIPARAMBIL)

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SMT.RESHMA ABDUL RASHEED

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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RKM

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K. HARILAL & ANNIE JOHN, JJ.

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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

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M.F.A.No. 135 of 2013

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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 2^nd day of August, 2018

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JUDGMENT

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K. Harilal, J.

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The appellants, the State of Kerala and

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another, are the first and 2^nd opposite parties in

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WCC.No.71 of 2008 on the files of the Commissioner

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for Employees' Compensation, Thiruvananthapuram.

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The aforesaid application was filed by the first respondent herein under Section 22(2) of the Employees' Compensation Act, 1923 (hereinafter referred to as, 'the Act”) and Rule 20 of the Employees' Compensation Rules claiming a lump sum payment of Rs.1,50,000/- under Section 4 of the Act

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by the appellants herein to him.

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M.F.A.No. 135 of 2013

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According to the first respondent, he

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is a registered loading and unloading labour and

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he was continuously under the employment of the appellants herein for cutting, removing, loading and unloading of teak trees for the last more than 9 years at Konni Range coming under the jurisdiction of the 2^nd appellant herein. On 08.02.2008, at about 12.30 hours, while he was engaged in cutting trees, a tree fell over another tree and from that tree, a piece of branch came towards the applicant and made a cut injury over his left forearm near wrist, damaging the nerve leading to palm and thereby he sustained grievous

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injury. Immediately, he was taken to SSM Hospital, Eliyaraikal, Konni and then to the Medical College Hospital, Trivandrum on a reference from the former hospital. On 20.02.2008, the first respondent had undergone a surgery for nerve system on his left forearm near

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M.F.A.No. 135 of 2013

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wrist and he was advised admission at the PH Centre, Konni and he got admitted at the PH Centre, Konni on 03.03.2008 and he was an

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inpatient up to 12.03.2008 and thereafter, he continued treatment as an outpatient. Later, he

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was referred to the Government Hospital, Pathanamthitta and there he was admitted for a re-

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surgery on 03.05.2008 and discharged on 17.05.2008. At the time of accident, he was earning Rs.8,000/- per month as salary. According to the first respondent, the accident arose out of

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and in the course of employment and thereby the appellants are liable to pay the compensation to him as prayed for.

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The appellants herein filed a written

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statement stating that the first respondent or any other labourers were not employed directly by the appellants either continuously or otherwise and no labourers were paid directly from the office of

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M.F.A.No. 135 of 2013 4

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the appellants. As per the G.O.(MS) 188/FA/WLD dated 21.12.1989, all forestry works were being carried out through convener system, wherein the convener is one among the labourers. The labourers for carrying out such works will be gathered and engaged by the convener under his direct responsibility. The comfort and safety of the labourers engaged by the conveners are the look out of the convener and not the Forest Department. The role of the Forest Department is limited to supervision of the work to ensure whether the estimated quantity and intended quality are achieved during implementation by the

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convener. As per the mandatory check measurements, the wages for the work is paid to the convener by cheque. In the absence of any direct engagement of work, the appellants are not liable to pay compensation to the first opposite party. Further, it is averred that even though

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M.F.A.No. 135 of 2013

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the first respondent is not directly employed by the Forest Department, on seeing the injury of the first respondent, the Forester in charge of the work in the plantation and the Range Officer rushed him to the nearest hospital in the Departmental vehicle and provided monetary help at his time of need and this was done on humanitarian ground and not due to any other responsibility or official compulsion. Further, it is contended that the application is bad for non- joinder of necessary parties as the 1^st respondent/ applicant was employed and paid directly by the convener with whom the particular work was entrusted by the Forest Department. The said convener is also a necessary party for the proper adjudication of the issue involved in the application. On the basis of the said contention, the 2^nd respondent herein was impleaded in the application as additional 3^rd opposite party.

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M.F.A.No. 135 of 2013

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On the aforesaid rival pleadings, both parties adduced evidence, which consists of the

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oral testimony of AW1 to AW3 and Exts. A1 to A10 from the part of the first respondent and the oral evidence of DW1 alone from the part of the appellants herein. No documentary evidence was produced by the appellants herein.

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After considering the aforesaid

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evidence of record, the Commissioner for Employees' Compensation allowed the application and passed the impugned order granting Rs.56,329/with interest to the first respondent herein. The legality and correctness of the findings whereby

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the Commissioner for Employees' Compensation determined the liability on the appellants and the quantum of compensation fixed are challenged in this appeal.

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Heard the learned counsel for the

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appellants and the learned counsel for the

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M.F.A.No. 135 of 2013

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respondents.

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Going by the impugned order, it could be

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seen that the Commissioner for Employees Compensation passed the impugned order mainly on the findings that the first respondent herein was an employee under the appellants herein and there was an employer-employee relationship between them and the accident arose out of and in the course of employment and thereby the appellants are liable to pay compensation to the first respondent, under section 3 of the Employee's Compensation Act, 1923. In view of the aforesaid finding, the points to be considered in this appeal are as follows:

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i) Whether there is any illegality or impropriety in the findings of the Employees Compensation Commissioner that there is an employer-employee relationship between the appellants and the first respondent?

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M.F.A.No. 135 of 2013

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ii) Is the Employees Compensation Commissioner justified in finding that the accident arose out of and in the course of employment?

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iii) Whether the Employees Compensation Commissioner is justified in finding that the appellants are the employees, under whom the 1^st respondent was directly employed?

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iv) Whether there is any reason to interfere with the quantum of compensation determined by the Employees Compensation Commissioner in the impugned order?

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Coming to the first point, it is the

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case of the first respondent that he is a registered loading and unloading worker and he was continuously under the employment of the appellants, for cutting, removing, loading and unloading of teak trees and he was under the

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M.F.A.No. 135 of 2013

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employment of the appellants, for the last nine

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years at Konni range, coming under the jurisdiction of the second appellant. On 8.2.2008 at about 12.30 hours, while he was engaged in cutting trees, one of the tree fell over another tree and from that tree a piece of branch fell over the first respondent as a result of which he suffered a cut injury over his left forearm near wrist damaging the nerve leading to palm and thereby he sustained grievous injuries.

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On the other hand, the appellants

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herein contended that the first respondent was not directly employed by the appellants. No labourer was paid directly from the office of the second appellant. All forestry works were being carried out by the convenor system, where the convenor is one among the labourers. The role of the officers of the forest department is limited

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to the supervision of the work. During

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M.F.A.No. 135 of 2013

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implementation of the work as per the mandatory check measurements, the wages for the work was paid to the convenor by cheque and the first respondent has not been engaged directly in the alleged works by the appellants.

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We have meticulously analysed the

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contentions raised by the appellants. On a close reading of the statement, that the first respondent was not directly employed by the appellants and wages for the work are paid to the convenor by cheque and the work was being carried out through the convenor, who is selected from among the labourers, would give rise to an admission from the part of the appellants themselves that the first respondent was employed indirectly by them and the wage to the first respondent was being paid to him through the convenor, selected from among the labourers. In

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other words, we find that the appellants

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M.F.A.No. 135 of 2013

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themselves admitted that the first respondent is an employee indirectly employed by them to do the forestry works under the supervision of the second respondent. If the first respondent is employed indirectly by the appellants themselves through the convenor for doing the forestry work under the appellants, certainly, the appellants shall be deemed to be a principal employer and convenor, if any, would be deemed to be the contract employer, falling under section 12 of the Employees Compensation Act. Thus, we find that the appellants are the principal employers and the first respondent was employed under them and the rights and obligations between them are governed by the provisions contained in section 12 of the Employees Compensation Act, even according to their own admissions.

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But, there arises another question as

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to whether they have succeeded in proving that

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M.F.A.No. 135 of 2013

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they are principal employers only and the second opposite party is the contract employer

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contemplated under section 12 of the Act. We will consider that question later. In the above analysis, we find that in the written statement itself the appellants have admitted that they are the principal employers falling under section 12 of the Employees Compensation Act. Therefore, the Employees Compensation Commissioner is justified in finding that there is an employeremployee relationship between the appellants and the first respondent. We do not find any kind of illegality or impropriety in the said finding. The first point is found against the appellants. 12. It is not disputed that the accident

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occurred in the forest range under the control and supervision of the second respondent. In other words, the place of accident is not disputed. Similarly, the cause of accident also

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M.F.A.No. 135 of 2013

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stands undisputed. In the written statement

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itself, the appellants admitted that when the second appellant came to know that the accident, as alleged by the first respondent has occurred in his area, he rushed to the accident spot and the first respondent injured was taken to the nearest hospital in the departmental vehicle and provided all help to the injured, including monetary help. Though they contended that those helps were provided purely on humanitarian grounds, we find that in view of the fact that there was an employer-employee relationship between the appellants and the first respondent, it was obligatory on the part of the appellants to provide such help, both physical and monetary, to the first respondent at the time of accident. Therefore, it is discernible from the written statement itself that the accident arose out of and in the course of employment under the

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M.F.A.No. 135 of 2013

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appellants.

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That apart, the first respondent has

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given oral evidence in tune with the claim that he was an employee under the appellants and the accident arose out of and in the course of employment under the appellants. Even though he was cross-examined by the appellants, nothing has been brought out to discredit his evidence and throughout the cross-examination, he stood by his pleadings that he was employed directly by the appellants and not through the convenor, as contended by the appellants. The evidence of the first respondent is supported by the evidence of AWs.2 and 3. They are co-workers who were present in the spot of accident at the time of accident. They also have sworn to the proof affidavit and testified that the first respondent

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was engaged in cutting trees and other works in the forest range and when they were cutting a

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M.F.A.No. 135 of 2013

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tree, the tree fell over another tree and from that tree a piece of branch fell over the first respondent and made a cut injury over his left forearm near wrist during the course of the employment of the first respondent. Thus perceived, the 2^nd point is also found against the appellants.

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We have meticulously gone through the cross-examination by the appellants and we find that even though AWs 1 and 2 were cross-examined at length, touching the evidence given by them in chief examination, nothing has been brought out in cross-examination to make their evidence unbelievable or suspicious. Moreover, we find that they are natural witnesses, who deposed the truth only and throughout the cross-examination they stood by their evidence in chief-examination that they were never employed by the convenor and they were employed by the appellants directly.

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M.F.A.No. 135 of 2013

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Further, they deposed that wage was paid by the second appellant himself. Therefore, on an analysis of the oral testimony of AWs 1 to 3, we are of the opinion that they stood by their consistent version that they were employed by the appellants directly.

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Coming to the evidence of the

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appellants, the second respondent was examined as RW1. He fairly deposed that at the time of accident he was working in a different forest range and he has no direct knowledge about the details of the accident and he has hearsay knowledge only. What he stated in the chief affidavit is based on the matters, which he learnt from the records only. Thus, we find that RW1 has given evidence on the basis of his hearsay and recordical informations only and no purpose was served by examining RW1. Admittedly, he has no direct knowledge about the accident. No

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M.F.A.No. 135 of 2013

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other evidence, either oral or documentary, was produced by the appellants, to substantiate their case that the first respondent was not directly employed by them and the first respondent and other workers were employed by the convenors selected by them from the employees. Virtually, there was no evidence on the part of the appellants to prove the contentions denying the direct employer-employee relationship put forward in the written statement. More importantly, even though they have contended that there was a Government notification dated 21.12.1989, whereby all forestry works are being carried out through convenor system, the said notification was not produced in evidence. That apart, no documentary evidence or reliable oral evidence has been adduced, to substantiate the contention that there was a convenor system and the first respondent was engaged through convenor system.

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M.F.A.No. 135 of 2013

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Though they contended that there was an agreement signed by the convenor with the appellants, as per the Government Order dated 21.12.1989, no such agreement was produced in evidence. In the absence of any kind of evidence to prove the claim of the appellants that the first respondent was not directly employed by them, it could be held that the appellants failed to adduce sufficient rebuttal evidence to rebut the substantive evidence adduced by AWs 1 to 3.

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In the above analysis, we find that

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as rightly observed by the Employees Compensation Commissioner, the first respondent has succeeded

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in proving that he was employed directly by the appellants herein and the second respondent herein was not his employer. The Commissioner for Employees Compensation is justified in finding that the appellants are the employers, who are liable to pay compensation to the 1^st

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M.F.A.No. 135 of 2013 19

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respondent herein. The 3^rd point is also found

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against the appellants.

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As regards the quantum of

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compensation, no argument was put up before us, challenging the correctness of the question of compensation determined by the Commission. On an analysis of the methodology adopted by the Employees Compensation Commissioner, for

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determining the quantum of compensation, we find that there is no illegality, impropriety or irregularity warranting interference of this Court. The quantum of compensation determined by the Commissioner for Employees Compensation is just, fair and reasonable, warranting no interference at all. The 4^th point is also found against the appellants.

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M.F.A.No. 135 of 2013

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This appeal is devoid of merits and is

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dismissed accordingly. All the pending

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interlocutory applications will stand closed.

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Sd/-d/-

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K.Harilal, Judge

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Sd/- Sd/- Annie John, Judge

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True copy

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PA to Judge

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RKM/sl

State of Kerala v. Mohan.C

Case brief

What is this about?

What did the court decide?

State of Kerala v. Mohan.C

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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