Partly allowed

K.P.Yoosaf v. Ramakanth

Kerala HC6 Aug 2019MFA (ECC)/44/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, re-fixing the monthly wages for calculating compensation from Rs. 4,000 to Rs. 3,000. The court held that a casual employee cannot receive the same benefit as a permanent employee regarding wage-based compensation calculations.

What did the court decide?

Monthly wages re-fixed from Rs. 4,000 to Rs. 3,000; total compensation and penalty re-fixed accordingly.

K.P.Yoosaf Vs Ramakanth — Pension and Retirement Benefits | 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 SATHISH NINAN

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TUESDAY, THE 6TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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MFA. (ECC) No.44 OF 2018

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AGAINST THE ORDER DT. 28.11.17 IN ECC No.115/16 (WCC No.28/2005) OF THE COURT OF EMPOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL), THRISSUR

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APPELLANT/OPPOSITE PARTY:

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SRI.K.P.YOOSAF,

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T.N.AUTO ENGINEERING (P) LTD., NEAR RAILWAY STATION, WADAKKANCHERRY, THRISSUR.

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BY ADV. SRI.JOHN K.GEORGE

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RESPONDENT/APPELLANT:

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RAMAKANTH, S/O.BIRJUN, DINAPATTY VILLAGE, MENPUR P.O., KASINAGAR DISTRICT, UTTAR PRADESH-282001.

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BY ADVS. SRI.N.M.MADHU SRI.P.P.HARRIS

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THIS MISC. FIRST APPEAL (ECC) HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = M.F.A. (ECC) No.44 of 2018

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= = = = = = = = = = = = = = = = = = Dated this the 6^th day of August, 2019

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J U D G M E N T

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An award by the Employees Compensation Commissioner is under challenge by the opposite party.

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According to the respondent-applicant, in the course of his employment under the opposite party as a Mechanic, he sustained permanent disability in an accident that occurred on 03.02.04, while he was repairing the rolling machine in the factory of the opposite party. One iron rod pierced into his left hand resulting in penetrating injury and permanent disability. Compensation of 2,36,472/- was claimed on the basis that he was drawing a monthly wages of 5,500/-.

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The opposite party denied the employeeemployer relationship. It was contended that, occasionally, the applicant used to be employed by

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M.F.A. (ECC) No.44 of 2018

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:- 2 :-

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him on daily wages. The incident as such was not denied.

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Heard learned counsel on either sides.

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As held by a Division Bench of this Court in

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Shah v. Rajankutty [2005 (3) KLT 1014] even a casual workman employed for the purpose of trade or business comes within the definition of workman under the Workmen Compensation Act. Therefore, even on the facts set up by the opposite party, the applicant is a workman under him.

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The alleged incident is not in dispute. Ext.A1 is the original discharge summary issued from the hospital to the effect that the applicant was treated in the hospital as an inpatient from 03.02.04 to 16.02.04. He had penetrating injury in his left forearm. Ext.A2 is the original disability certificate. Ext.A3 series are the photographs and negatives evidencing the injuries sustained by the applicant. As per Ext.A2, the applicant sustained permanent whole body disability of 19% with a loss of earning capacity at 38% as a Mechanic. On the application of the applicant, he was referred to

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M.F.A. (ECC) No.44 of 2018 :- 3 :-

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special medical board attached to the Government Medical College Hospital, Thrissur. The report by the Medical Board is marked as Ext.X1. The Medical Board reported that the applicant suffers from permanent whole body disability of 35% and loss of earning capacity of 50%. The Commissioner has rightly accepted the loss of earning capacity at 50%.

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Though the applicant claims that he was an employee under the opposite party drawing a monthly wages of 5,500/-, there is no evidence to substantiate the same. By production of Exts.B1 and B2, the muster roll and register of wages of the permanent workers of the opposite party, the contention of the applicant has been disproved. There is no document to show that he was a permanent employee of the opposite party. However, the fact remains that even as admitted by the opposite party, the applicant was being engaged occasionally on daily wages of 500/-. The Commissioner has entered a finding that since the

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M.F.A. (ECC) No.44 of 2018 :- 4 :-

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master-servant relationship is admitted, in the absence of any material, it has to be concluded that the applicant was drawing monthly wages under the opposite party. However, as noticed supra on the face of Exts.B1 and B2, the said conclusion is unsustainable.

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Being a casual employee it cannot be held that the applicant was employed on all days by the opposite party. Regarding a permanent employee, the maximum amount that could be taken as monthly wages for the purpose of calculating compensation, has been noticed by the Commissioner to be 4,000/-. A casual employee who is occasionally employed cannot be given the same benefit as that of the permanent employee. In the facts and circumstances, I deem it appropriate to re-fix the said amount at 3,000/-. There is no dispute regarding the age of the applicant.

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Though the learned counsel for the appellant would submit that no opportunity was granted before ordering penalty, the order impugned reveals

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M.F.A. (ECC) No.44 of 2018

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:- 5 :-

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otherwise. I do not find any reason or material to interfere with the same.

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In the result, this appeal is allowed in part. The wages adopted by the Commissioner at 4,000/will stand re-fixed at 3,000/-. The total amount of compensation and the penalty will stand re-fixed in terms thereof. In all other respects, the order impugned is confirmed. No costs.

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Sd/- SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

K.P.Yoosaf v. Ramakanth

Case brief

What is this about?

What did the court decide?

K.P.Yoosaf v. Ramakanth

Case brief

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What did the court decide?

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