Anil Kumar vs Selvaraj
2023 Latest Caselaw 11650 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
 THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA,
                            1945
                  MFA (ECC) NO. 37 OF 2021
    ECC 240/2017 OF EMPLOYEES COMPENSATION COMMISSIONER
        (INDUSTRIAL TRIBUNAL AND EMPLOYEES INSURANCE
                 COURT),THIRUVANANTHAPURAM
APPELLANT/APPLICANT

          ANIL KUMAR, AGED 40 YEARS
          S/O.MUTHAYYAN, CHAI PLAVILA VEEDU, NAMBIYATHI,
          PAMPUKALA, PUTHIYATHURA, KARUMKULAM VILLAGE,
          THIRUVANANTHAPURAM DISTRICT.
          BY ADV VISHNU BHUVANENDRAN


RESPONDENTS/OPPOSITE PARTIES 1 TO 3

    1     SELVARAJ, S/O.JUSTUS, PERIYAN NILAYAM,
          PALLIVETTA, PALAIKONAM, ARYANADU P.O.,
          NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
    2     RAJA RETNAM
          S/O.LATE DESAN NADAR, EDAPPENVILA VEEDU,
          PARANIYAM, POOVAR P.O., THIRUVANANTHAPURAM.
    3     THE DIVISIONAL MANAGER
          NEW INDIA ASSURANCE CO.LTD., THIRUVANANTHAPURAM.

    THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON
9.11.2023, THE COURT ON 16.11.2023 DELIVERED THE
FOLLOWING:
    MFA(ECC).37/2021
                                      2


                        C. PRATHEEP KUMAR, J
                      ---------------------------------------
                             M.F.A. No.37 of 2021
                      ----------------------------------------
                 Dated this the 16th day of November, 2023

                                JUDGMENT

This is an appeal filed under Section 30 of the Employees

Compensation Act, 1923 against the order dated 24.6.2020 passed by the

Employees Compensation Commission (Industrial Tribunal),

Thiruvananthapuram, in ECC No.240/2017 (Old Case No.665/2014).

According to the appellant, he was the paid employee of respondents 1

and 2 in the mini lorry bearing registration No.KL-10-8523. On

15.4.2011 at about 9.30 am, while he was on duty, in the above mini lorry

driven by the second respondent, and loaded with wood ash, met with an

accident near Paraniyam Junction and in the incident he sustained injuries

of Multiple Rib Fracture. Immediately he was taken to Medical College

Hospital, Thiruvananthapuram and treated there as in-patient. At the time

of incident, he was 30 years of age and was getting monthly wages of

Rs.8,000/-. He had filed the application claiming compensation of

Rs.6,00,000/-.

2. The 1st respondent did not contest the matter and the second MFA(ECC).37/2021

respondent opposed the application. 3rd respondent admitted the policy

but denied the claim of the appellant. As per the impugned order, the

Commissioner rejected his claim. Aggrieved by the impugned order, he

preferred this appeal raising various grounds. According to the appellant,

once the matter was sent for mediation and the mediation was not

successful. On 24.2.2020 the matter was taken as heard and posted for

orders. However, on 25.3.2020, the Commissioner suo motu reopened

the case and posted to 1.6.2020, 8.6.2020 and finally on 24.6.2020. Since

it was lockdown period due to Covid-19 pandemic, the appellant could

not appear before the Commissioner. Therefore, he could not adduce any

evidence, after the evidence was reopened by the Commissioner. The

appellant was not aware of the reopening of the case by the

Commissioner. The employer-employee relationship was not disputed.

Since he sustained injuries during the course of employment, he is

entitled to get compensation. Therefore, he prayed for setting aside the

impugned order passed by the Commissioner by allowing this appeal and

to award the compensation, prayed for in the application.

3. Points that arise for consideration are the following:

1) Whether the Employees Compensation Commissioner was justified in holding that the appellant failed to prove MFA(ECC).37/2021

the employer-employee relationship?

2) Whether the impugned order passed by the Commissioner is liable to be set aside in the light of the grounds raised?

4. Heard both sides.

5. According to the appellant, he was employed by respondents 1

and 2 in the mini lorry bearing No. KL-10-8523. On 10.4.2011 at about

9.30 am, while he was on duty in the mini lorry, he met with an accident

and thereby he sustained serious injuries. The application filed by him

under Section 22 of the Employees Compensation Act was dismissed by

the Employees Compensation Commissioner mainly on the ground that

the appellant failed to prove the employer-employee relationship. On the

other hand, according to the appellant, the employer-employee

relationship was admitted and as such the impugned order dismissing the

application on that ground is unsustainable.

6. On a perusal of the impugned order, it can be seen that in this

case, the appellant has not adduced any oral evidence. In the impugned

order, the Commissioner has categorically stated that from the available

evidence it is revealed that the appellant was a passenger in the lorry but

there is no evidence to prove the employer-employee relationship. In the MFA(ECC).37/2021

written statement filed by the second respondent, he conceded that the

appellant was employed by the first respondent. However, the first

respondent has not filed any written statement before the Commissioner,

admitting that the appellant was engaged by him. It was in the above

context that the Commissioner found that there is no evidence to prove

the employer-employee relationship.

7. In the memorandum of appeal, the appellant has taken a

contention that after the mediation failed, the case was posted in January-

2020. On 24.2.2020, the matter was taken as heard and posted for orders.

Thereafter, on 25.3.2020, the Commissioner reopened the case so as to

ascertain about the job of the appellant in the lorry and for adducing

evidence in that regard. Thereafter, the case was posted in June 2020 and

July-2020, during the lock down period and therefore, the appellant nor

his counsel could appear before the Commissioner. The appellant also

raised a contention that no opportunity was offered to him to adduce

evidence in order to prove the employer-employee relationship.

From the proceedings of the Commissioner also it can be seen that

after the case was taken up for orders, it was suo motu reopened on

25.3.2020 for adducing evidence to prove the employer-employee

relationship. Thereafter, the case was posted on 27.4.2020, 1.6.2020, MFA(ECC).37/2021

8.6.2020 and finally, the application was dismissed on 24.6.2020. In the

meantime, on 1.6.2020, the case was posted for settlement to 8.6.2020.

On 8.6.2020, though both parties were present, no evidence was adduced

and hence, the matter was taken for orders.

8. As argued by the learned counsel for the appellant, during

the period from March-2020, there was lock down due to COVID-19

pandemic. Therefore, the contention of the appellant that he could not

adduce evidence to prove the employer-employee relationship as it was

the period of lock down due to COVID-19 pandemic could not be

disbelieved. At the time of argument, the learned counsel for the appellant

prayed for giving one more opportunity to him to adduce evidence to

prove the employer-employee relationship. When this appeal was taken

up for hearing, there was no representation for the respondents and hence,

the appellant alone could be heard. Considering the entire facts, I hold

that it is only just and proper to give one more opportunity to the

appellant to adduce evidence to prove the employer-employee

relationship. To that extent, this appeal is liable to be allowed. The points

are answered accordingly.

In the result, this appeal is allowed. The impugned order dated

24.6.2020 is set aside. The matter is remanded back to the Employees MFA(ECC).37/2021

Compensation Commissioner, (Industrial Tribunal), Thiruvananthapuram.

The Tribunal is directed to dispose of the matter afresh after affording

opportunity to both sides to adduce evidence, if any, within a period of

six months from the date of receipt of a copy of this judgment.

Sd/-

C. Pratheep Kumar Judge

sou/Mrcs/10.11.