Kerala High Court
United India Insurance Co. Ltd vs M.P.Arjun on 7 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 7TH DAY OF JUNE 2024 / 17TH JYAISHTA, 1946
MFA (ECC) NO. 76 OF 2019
AGAINST THE ORDER DATED 15.03.2019 IN ECC NO.437 OF 2014 OF
THE COMMISSIONER FOR EMPLOYEES COMPENSATION (INDUSTRIAL
TRIBUNAL), PALAKKAD
APPELLANT/2ND OPPOSITE PARTY:
UNITED INDIA INSURANCE CO. LTD.
MICRO OFFICE, OPPOSITE SBT, THIRURANGADI , P.O CHEMMAD,
THIRURANGADI TALUK, MALAPPURAM DISTRICT REPRESENTED BY
THE REGIONAL MANAGER, OFFICE OF THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD, HOSPITAL ROAD, ERNAKULAM
BY ADV DEEPA GEORGE
RESPONDENTS/APPLICANT AND 1ST OPPOSITE PARTY:
1 M.P.ARJUN,
S/O. PRAMANATHAN, MULAMUKKIL HOUSE, SOUPARNIKA, KAKKAD
P.O, THIRURANGADI TALUK, MALAPPURAM DISTRICT 673 586
2 PREMANANTHAN,
NELLIPARAMBAN HOUSE, SOUPARNIKA HOUSE, P.O KAKKAD,
THIRURANGADI TALUK, MALAPPURAM DISTRICT 673 586
BY ADVS.
SRI.K.M.SATHYANATHA MENON FOR R1
P.YADHU KUMAR FOR R2
SMT.KAVERY S THAMPI FOR R1
THIS MFA (ECC) HAVING COME UP FOR HEARING ON 29.05.2024,
THE COURT ON 07.06.2024 DELIVERED THE FOLLOWING:
2
M.F.A (ECC) No.76/2019
G.GIRISH, J.
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M.F.A (ECC).No.76 of 2019
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Dated this the 7th day of June, 2024
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JUDGMENT
The second opposite party (insurance company) in
E.C.C.No.437/2014 of the files of the Court of Employee's
Compensation Commissioner (Industrial Tribunal), Palakkad has
filed this appeal under Section 30 of the Employee's Compensation
Act, 1923.
2. The case relates to the injury sustained by the 1st
respondent in a motor bike accident which took place on
24.05.2012 while he was riding the motor bike with a pillion rider
at the place called Cherippady. It is stated that the motorcycle
driven by the 1st respondent capsized into the side of the road
resulting in serious injuries to the riders including the 1 st
respondent. According to the 1st respondent, who was the
applicant in E.C.C.No.437/2014 before the Employees'
Compensation Commissioner, Palakkad, the aforesaid accident
occurred during the course of his employment in a shop run by the
2nd respondent who is none other than his father. The motorcycle
driven by the 1st respondent was said to be belonging to the 2nd
respondent. The appellant was the insurer of the said vehicle. It
is upon the above premises that the 1st respondent approached
the Employee's Compensation Commissioner claiming
compensation from the 2nd respondent as his employer, and the
appellant as the insurer who was liable to indemnify the 2 nd
respondent.
3. The 2nd respondent supported the case of his son and
filed written statement contending that the 1st respondent was his
employee drawing monthly wages of Rs.7,500/-, and that the
accident occurred during the course of employment. However, it
was contended that the appellant, being the insurance company
with whom a valid policy coverage existed, had to pay the
compensation to the 1st respondent.
4. The appellant filed written statement before the trial
court strongly opposing the claim of the 1st respondent. It was
stated in the said written statement that there was absolutely no
employer-employee relationship between the 2nd respondent and the 1st
respondent, and that the accident occurred while the 1st respondent and
his friend were returning after a pleasure trip to Oorakam Cherippady
hill, due to the rash and negligent driving of the 1st respondent.
According to the appellant, the respondents twisted the aforesaid
accident in such a way to try whether the 1st respondent could
claim compensation which he was otherwise disentitled.
6. In the trial before the Court of Employees'
Compensation, Commissioner the 1st respondent and one witness
were examined as AW1 and AW2 and 7 documents marked as
Exts.A1 to A7 series. The 2nd respondent and the appellant did not
adduce any evidence.
7. After hearing both sides and evaluating the evidence
adduced, the learned Employee's Compensation Commissioner
found that the 1st respondent was the employee of the 2nd
respondent, and that the accident occurred during the course of
such employment. Upon the finding that the 1st respondent is
entitled to be compensated for the injuries so sustained, the
learned Employees' Compensation Commissioner directed the
appellant to pay an amount of Rs.1,62,564/- as compensation to
the 1st respondent. It is the aforesaid order of the learned
Employees' Compensation Commissioner, Palakkad, which is under
challenge in this appeal.
8. The substantial question of law involved in this case is
whether the Employees' Compensation Commissioner was justified
in arriving at a positive finding regarding the employer-employee
relationship between the 2nd respondent and the 1st respondent,
and also about the happening of the accident during the course of
such employment, on the basis of mere oral evidence adduced by
the 1st respondent and another witness.
9. As already stated above, the employer of the 1st
respondent who has been arraigned as the 2nd respondent in this
appeal, is none other than the father of the 1st respondent.
Admittedly, the 1st respondent was aged only 19 years at the time
when the accident took place. Still, it is contended that he is
pursuing employment under his father instead of opting for any
academic course. Be that as it may, there is absolutely no
embargo in opting employment by a person aged 19 years in a
shop being conducted by his father. But the strange thing to be
noted in this case is that there is absolutely no evidence other than
the mere statements of the 1st respondent and one witness as AW1
and AW2 to show that the 1st respondent was working as an
employee in a shop being conducted by the 2nd respondent, his
father. It is not even made clear in the application filed before the
Employee's Compensation Commissioner as to the nature of the
shop or what type of business was being conducted there by the
2nd respondent who is said to be the employer of the 1 st
respondent. Nor had the 2nd respondent stated anything in his
written statement about the nature of the shop said to have been
conducted by him, or the nature of the job assigned to the 1 st
respondent in the so called shop. The 2nd respondent also did not
opt to appear before the Employee's Compensation Commissioner
and to adduce evidence pointing to the employment of his son, the
1st respondent, in the shop being conducted by him.
10. It has to be stated here that the 1st respondent could
have adduced appropriate documentary evidence to establish his
contention that he was working as an employee in the shop being
conducted by his father. There was absolutely no difficulty for the
1st respondent to procure the relevant documents with the help of
his father with regard to the registration of the shop under the
provisions of the Shops and Commercial Establishment Act, and
the relevant register showing the employees working in that shop.
If the respondents 1 and 2 have got a case that there was no such
registration for that shop, they could have atleast produced the
relevant records pertaining to the licence issued by the local
authority concerned for the conduct of the said shop. That apart,
the respondents could have brought on record the relevant
acquittance register to establish the payment of wages by the 2 nd
respondent to the 1st respondent for the job undertaken by the 1st
respondent in that shop. Without taking recourse to any of the
above measures to establish the primary requirement that the
accident occurred during the course of employment of the 1 st
respondent with the 2nd respondent, they have opted for the oral
evidence of the 1st respondent as AW1 and another witness as AW2
in the above matter. As far as AW1 is concerned, Ext.A4 which is
the certified copy of the final report filed by the police with regard
to the accident involved in this case, depicts him as a student.
When AW1 was confronted in cross-examination about the said
aspect seen in the document produced by him, he would contend
that it is not correct. It is pertinent to note that the proof affidavit
filed by AW1 before the Employee's Compensation Commissioner
does not disclose that the 2nd respondent whom he refer as 1st
opposite party, is his father. It is also not possible to discern from
the above proof affidavit about the identity of the shop of the 2nd
respondent where the 1st respondent is said to have been working
as an employee. The evidence tendered by AW2 is to the effect
that the 1st respondent had brought some documents and its
photostat copies to him on 24.05.2012 at Oorakam Cherippady,
under the instructions of the 2nd respondent, and that during the
return journey, the 1st respondent met with an accident. The
above evidence of AW2 could no way set right the drawback of the
1st respondent's case due to absence of convincing evidence
regarding his capacity as an employee under the 2nd respondent.
It has to be stated here that the omission on the part of the 1st
respondent to bring the best evidence before the Employee's
Compensation Commissioner to establish his capacity as an
employee of the 2nd respondent, can only give rise to the
presumption that there is no such documents supporting the case
of the 1st respondent, or that the production of any such document
would disprove his case.
11. Unfortunately, the learned Employee's Compensation
Commissioner did not pay any attention on the above aspect
regarding the inability of the 1st respondent to produce the most
suitable evidence to establish his claim as an employee under the
2nd respondent, and the happening of the accident during the
course of such employment. Instead, the trial court is seen to
have adopted an erroneous view about the burden of proof in cases
of this nature. The observation of the learned Employee's
Compensation Commissioner in the impugned order that the
applicant (1st respondent in this appeal) has discharged his initial
burden and that the burden of proof has shifted to the shoulder of
the insurer to establish their contentions, is apparently erroneous.
The obligation of the applicant in a Workmen Compensation Act
case to establish his capacity as an employee and the happening
of the accident during the course of employment under the
employer, cannot be watered down by saying that the oral
evidence adduced by the employee and another witness would
prima facie fulfil the above requirement of law, and that the burden
of proof gets shifted to the opposite party to show that it was
otherwise. It is the incumbent responsibility of the
applicants/claimants in cases of this nature to establish the vital
requirements regarding their capacity as employees and the
occurrence of the accident during the course of such employment,
by adducing the proper and apt evidence before the trial court.
They cannot take advantage of the silence of the opposite parties
and contend that the burden of proof got shifted to the opposite
parties. This is because of the reason that the law does not expect
the opposite parties to adduce any evidence when the
applicants/claimants are not in a position to bring-forth the
relevant materials to establish their claim. As far as the present
case is concerned, the learned Employees Compensation
Commissioner went wrong in deducing the conclusion that the oral
evidence adduced by AW1 and AW2 had established the case of
the applicants/claimants, and that the burden of proof got shifted
to the opposite parties to rebut the oral evidence adduced by AW1
and AW2 about the employment of the applicant/claimant, and the
happening of the accident during the course of such employment.
12. As a conclusion to the above discussion, I find that the
Employees Compensation Commissioner had arrived at an
erroneous finding about the capacity of the 1st respondent as an
employee under the 2nd respondent, and the occurrence of the
accident during the course of such employment. That being so,
the present appeal against the impugned order passed by the
Employees Compensation Commissioner succeeds, making it
absolutely necessary to annul the said order in exercise of the
appellate powers of this Court.
Accordingly, the appeal stands allowed as follows :
(i) The order dated 15.03.2019 of the Employees
Compensation Commissioner (Industrial Tribunal) in
ECC No.437 of 2014, is hereby set aside and
reversed.
(ii) It is made clear that the 1st respondent is not entitled
to any of the monetary reliefs sought for in the
aforesaid case, and that if the appellant has
deposited any amount as pre-condition for the filing
of this appeal, it shall be refunded to the appellant.
(sd/-)
G.GIRISH, JUDGE
jsr
