Dismissed

Sunil Kumar v. Narayanankutty Nair

Kerala HC7 Feb 2019MFA (ECC)/106/2006

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal by the Commissioner for Workmen's Compensation, holding that the appellant was a casual worker not employed for the purposes of the respondent's trade or business as a Merchant Navy veteran, and thus not entitled to compensation.

What did the court decide?

The impugned order dismissing the workmen's compensation application was upheld; appeal dismissed.

Sunil Kumar Vs Narayanankutty Nair — Writ and Judicial Review | Kerala HC (2019)

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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 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940

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MFA.No. 106 of 2006

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AGAINST THE ORDER/JUDGMENT IN OTHERS 312/1998 of W.C.C.,KOZHIKODE DATED 21-02-2006

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APPELLANT/APPLICANT:

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SUNIL KUMAR, S/O. RAMANKUTTY, VADAKKEPPURAKKAL, THRIKKANDIYOOR P.O. TIRUR 4.

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BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.C.M.MOHAMMED IQUABAL

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RESPONDENT/OPPOSITE PARTY

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NARAYANANKUTTY NAIR SAYOOJYAM, THRIKKANDIYOOR, TIRUR 676 104.

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BY ADVS.

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SRI.P.S.MURALI SRI.R.BINDU (SASTHAMANGALAM) SRI. M.P. PRASANTH

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON

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07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MFA.No. 106 of 2006 2

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JUDGMENT

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K. HARILAL.J,

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The appellant herein was the applicant in W.C.No.312/1998 on the files of the Commissioner for Workmen's Compensation. The aforesaid application was filed u/s.22 of the Workmen's Compensation Act 1923, claiming compensation for the personal injuries sustained by him on 16.10.1993, while he was employed under the opposite party. According to the applicant, he is a carpenter by profession. While he was employed by the opposite party on 16.10.1993, for demolishing a double storied house belonging to the opposite party, the wall of the building collapsed and he fell down from the height of 16 feet and sustained serious injuries. Immediately, he was taken to Government Hospital, Tirur and thereafter to Medical College Hospital, Kozhikode, where he was

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MFA.No. 106 of 2006 3

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treated as in-patient. Subsequently, he was admitted

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in National Hospital, Kozhikode for expert management and at last he was discharged from the hospital on 03.11.1993. He is still undergoing treatment. Due to the accident, he is totally and permanently disabled to do any job. Had the opposite party exercised due care and diligence, the accident would not have occurred. He is getting a monthly salary of Rs.3000/- (Three thousand rupees only) per month and he is aged 21 years old. He is entitled to get a compensation of Rs.10,00,000/- (Ten lakhs rupees only), but he limited his claim to Rs.2,00,000/(Two lakhs rupees only)

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The opposite party resisted the said claim contending that the applicant is not a workman under him as contemplated in the Workmen's Compensation Act, 1923. There was no employer-workman relationship falling under the Act. He admitted the

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MFA.No. 106 of 2006 4

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accident. But, according to him, he has not requested the service of the applicant for demolishing the old building owned by him and the applicant himself voluntarily offered his service to demolish the old building. While other workers were engaged in the demolition works, the applicant, without instruction and direction, of his own volition, removed the wooden beams supporting the wall of the building, as a result of which, the wall collapsed and he, who was observing the work in the ground floor and the applicant sustained injuries. It is further contended that he is a an employee in the Merchant Navy and he is not a trader or businessman. He retired from the service after the date of occurrence. In the absence of employer-workman relationship between the applicant and the opposite party, he is not liable to pay compensation to the applicant.

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MFA.No. 106 of 2006 5

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On the aforesaid rival pleadings, both the parties adduced evidence and after considering the evidence on record, the Commissioner for Workmen Compensation, dismissed the application on a finding that the applicant was not a ' workman ' falling under section 2(n) of the Workmen's Compensation Act, as he was a casual worker only and the opposite party was not a trader of businessman. The legality and correctness of the aforesaid findings are challenged in this appeal and this appeal has been admitted on the files of this Court on the following questions of law :-

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(a) Is not the Order impugned vitiated not properly appreciating the evidence oral or documentary, available in this case?

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(b) Is not the order impugned barred in law since the same was passed on the basis of the irrelevant piece of evidence and without considering the relevant and material pieces of evidence?

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This Court's extent of interference, in this

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appeal, is confined to answer the aforesaid questions

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MFA.No. 106 of 2006 6

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of law only. It is the specific case of the applicant that he was an employee, under the opposite party, for demolishing the old building owned by the opposite party and he sustained injury on 16.10.1993, while he was engaged in the demolition work. He fell down from the first floor of the building, when the wall collapsed. According to the opposite party, the applicant was not his workman and he was a casual worker in the locality. He voluntarily offered his service, while other workers were engaged in the demolition of the old building. He has not working under his instruction.

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Section 2(n) of the Workmen's

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Compensation Act, 1923, defines ' workmen ' as given below:-

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''Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business)

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MFA.No. 106 of 2006 7

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Merely on the reason that the accident happened as alleged by the applicant, he is not entitled to get compensation under the Workmen's Compensation Act, if he was a person whose employment was of a casual nature and he was employed otherwise than for the purpose of trade or business of the opposite party.

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In the instant case, at the time of accident, admittedly, the opposite party was employed in Merchant Navy and he retired from the service after the accident. Exts.R1 to R4 would prove the said fact. There is no evidence to prove that he was conducting any business or trade, while he was in the service and the same was also impermissible. It has come out in evidence that he had 80 cents of property and out of that 80 cents, he has set apart 17 cents of property and the old building in favour of his elder son and the accident has occurred during the demolition of the

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MFA.No. 106 of 2006 8

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said building. It is true that ten years after the purchase of property, he has sold away 30 cents of property, out of that 80 cents of property to raise money to meet the educational expenses of his children. As rightly held by the commissioner, merely on the reason that he has sold away 30 cents of property and he demolished the old building stood in the properties set apart in favour of his elder son, it cannot be held that he was a business man or a trader. No documentary evidence has been produced by the applicant to prove that the building was demolished in connection with any trade or business of the opposite party.

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In view of Exts.R1 to R4 and the oral testimony of RW1 and the admission from the part of the applicant, the Commissioner for Workmen's Compensation is justified in finding that the opposite party was not an employer or trader. No evidence has

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MFA.No. 106 of 2006 9

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been adduced by the applicant to prove that he was regularly employed by the opposite party, for any kind of employment. Even according to the case of the applicant, he was employed on 16.10.1993, for the demolition of the old building only. Thus, his own admission would prove that he was a casual worker called for the work on that day only. In the absence of any evidence to the contrary, the Commissioner for Workmen's Compensation is justified in finding that the applicant was a person, whose employment was of casual nature, at the time of accident. In view of the above analysis, we find that the findings of the commissioner are fully supported by evidence on record and the commissioner has meticulously evaluated the oral as well as documentary evidence in its correct perspective and arrived at a just and proper finding dismissing the application. The impugned order is not vitiated by non-appreciation of

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MFA.No. 106 of 2006 10

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evidence either oral or documentary and the findings are based on relevant piece of evidence only. The questions of law are answered accordingly.

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This appeal is dismissed, accordingly.

Sd/-

K.HARILAL

JUDGE

Sd/ANNIE JOHN

JUDGE

ajt

Sunil Kumar v. Narayanankutty Nair

Case brief

What is this about?

What did the court decide?

Sunil Kumar v. Narayanankutty Nair

Case brief

What is this about?

What did the court decide?

What the court decided

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