Kerala High Court
Antony vs V.V. Mani on 9 April, 2025
MFA (ECC) NO.4/2019 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 9TH DAY OF APRIL 2025/19TH CHAITHRA, 1947
MFA (ECC) NO.4 OF 2019
ARISING OUT OF THE ORDER DATED 27.09.2018 IN ECC
NO.887 OF 2016 (WCC NO.64/2010) OF EMPLOYEES COMPENSATION
COMMISSIONER (INDUSTRIAL TRIBUNAL), THRISSUR
APPELLANT/APPLICANT:
1 ANTONY
AGED 65 YEARS
S/O.CHERIA, KOPLI HOUSE, MUPLIYAM,
VARANDARAPPILLY, THRISSUR DISTRICT.
2 ROSILY
W/O.ANTONY, KOPLI HOUSE, MUPLIYAM,
VARANDARAPPILLY, THRISSUR DISTRICT.
BY ADV P.V.CHANDRA MOHAN
RESPONDENTS/OPPOSITE PARTIES:
1 V.V. MANI
S/O.VELU, VAILAPPILLY HOUSE,
VENDOOR, ALAGAPPA NAGAR,
TRICHUR DISTRICT - 680 302.
2 THE RELIANCE GENERAL INSURANCE COMPANY LTD.
2ND FLOOR, GLOBAL PLAZA, OPP. NEW RAILWAY,
VANCHIKULAM ROAD, POOTHOLE P.O.,
THRISSUR - 680 004.
BY ADVS.
SRI.C.HARIKUMAR } R1
SRI.RENJITH RAJAPPAN }
SRI.HARIKRISHNAN }
MFA (ECC) NO.4/2019 2
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SMT.LATHA SUSAN CHERIAN, SC, R2
THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON
09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MFA (ECC) NO.4/2019 3
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JUDGMENT
Dated this the 09th day of April, 2025
This appeal is filed challenging the order dated 27.09.2018 in
ECC No.887 of 2016 (WCC No.64/2010) of the Court of Employees
Compensation Commissioner (Industrial Tribunal), Thrissur.
Appellants were the applicants and respondents were the opposite
parties in the said proceedings. The parties are hereinafter referred
to as per their status before the ECC.
2. Applicants are the parents of Nithesh, aged 22 years, who
died in an accident on 11.08.2009 while unloading timber from a
lorry at a saw mill. Nitesh was employed as a lorry driver under the
1st opposite party. Timber fell on to his head while unloading and he
succumbed to injuries at the spot. Contending that the death of their
son was due to an accident that occurred in the course of
employment, the applicants had filed a claim before the ECC
seeking a compensation of Rs. 6,00,000/-. The employer as well as
the insurer were arrayed as opposite parties 1 and 2 respectively.
The 1st opposite party admitted that he was the owner of the lorry.
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The 2nd opposite party insurance company, though admitted the
insurance policy disputed the other averments. Five issues were
framed by the ECC and the parties tendered evidence. AW1 and
AW2 were examined on the side of the Applicants and Exts.A1 to
A9 were marked. No witnesses were examined from the side of the
opposite parties. Exts.R1 to R2 were marked by the 2 nd opposite
party. The ECC after hearing both sides rendered the impugned
order dismissing the application terming it as devoid of merits. It was
inter alia concluded that the employer had in his written statement
disputed the employer employee relationship between him and the
deceased and that the applicants had no consistent case with
regard to the employment of the deceased. The aggrieved
applicants have preferred this appeal seeking to set aside the order
of the ECC raising the following substantial questions of law:
(1)When the documents and police records show that the 1 st
respondent/1st opposite party was the registered owner of
the lorry and the deceased was its driver when the
accident took place, can it not be taken that the initial
burden of proving the employer employee relationship has
been discharged?
(2) When the registration certificate of the lorry stands in the
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name of the 1st respondent/1st opposite party, is not there
a prima facie legal presumption that for all statutory
purposes he is the owner of the lorry and the employer of
the driver?
(3) When the driver of the lorry dies due to the injury
emanating from the collapse of the goods transported on
the same, is not the death one arising out of an
employment injury?
3. Heard Sri.P.V.Chandramohan, Advocate for the
appellants/applicants, Sri.C.Harikumar, Advocate for the 1 st
respondent/1st opposite party and Smt.Latha Susan Cherian,
Advocate, for the 2nd respondent/ 2nd opposite party.
4. The learned counsel appearing for the applicants
contended that the order impugned is perverse, legally
unsustainable and is fit to be interfered with. The ECC had
overlooked the settled position of law that a person in whose name
the vehicle stands registered is deemed to be the owner of the
vehicle for all statutory purposes including those under the Motor
Vehicles Act and that he will cease to be the owner only when the
registration is cancelled. The learned counsel submitted that the
ECC erred in law when it overlooked the deposition of the owner of
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the lorry, who was the best person to speak about the employer-
employee relationship. The 1st opposite party had not cross
examined AW1 and AW2. That the deceased and AW2 were
working under the 1st opposite party was never disputed by the 1 st
opposite party. The ECC not only failed to take note of valid aspects
of evidence that was tendered before it, but also read into the
evidence aspects which had not been presented before it. There
had been no denial of the employer - employee relationship in the
written statement filed by the 1 st opposite party. The statement to
the contrary in the Order impugned is erroneous. It is settled law
that the burden on the applicants is only to prima facie put forth
sustainable evidence regarding the employer-employee relationship.
Once the same is done, the burden shifts on to the party who
challenges the existence of such a relationship. The conclusion
arrived at by the ECC in the order impugned that the employer had
in his written statement disputed the employer-employee
relationship between him and the deceased is devoid of any basis.
The ECC had dismissed the application based on mere
assumptions and surmises. The order of the ECC is thus perverse
and fit to be set aside.
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5. Per contra, the learned counsel appearing for the 1 st
respondent/1st opposite party made submissions in line with the
written statement that had been filed before the ECC. The learned
counsel for the insurer defended the order of the ECC and
submitted that the same does not merit any interference. It was
contended that the lorry during the relevant time had no permit and
hence the same contravened the policy terms thus detrimentally
impacting the policy cover and liability of the insurer under the
policy. It was contended by the learned counsel that the appeal
does not merit consideration and is only to be dismissed.
6. I have heard the counsel in detail and have considered the
legal precedents placed. Section 30 of the ECC Act specifically
addresses appeals and states that an appeal would lie to this Court
only on a substantial question of law. Hence the contentions put
forth based on facts like for the instance that the lorry did not have a
valid permit during the relevant time is a factual aspect that falls
within the sole competence of the ECC to be decided based on
factual evidence. Hence I refrain from develving on such contentions
and would confine myself to the questions of law. I note that in
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Vijayaraghavan v. Velu and others [1973 KLT 333] this Court had
laid down the contours of the jurisdiction exercised by this court in
appeals from the orders rendered by the Workmen's Compensation
Commissioner and inter alia had affirmed the power to alter the
decree by substituting the person liable.
7. The principal contention put forth before me is that the
impugned order is perverse and hence is fit to be set aside. Such a
contention is based on the premise that though the documents and
police records that reliably evidenced that the 1 st opposite party was
the registered owner of the lorry during the relevant time and that
the deceased was its driver when the accident took place had been
placed for consideration, the ECC had overlooked the same and
proceeded to read into the written statement of the 1 st opposite party
aspects that were not stated therein. Thus the reasoning of the
ECC, it is alleged, was based on assumptions and not on legally
subsisting material causing it to be perverse. Additionally, the initial
burden of proving the employer-employee relationship had been
successfully discharged by the applicants before the ECC by basing
on Exts.A1 to A9. Thus the burden to legally substantiate that such
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a relationship did not exist had shifted on to the opposite parties and
the said burden was never discharged by them. This crucial aspect
was overlooked by the ECC and it was concluded without any basis
that the employer had in his written statement disputed the employer
employee relationship between him and the deceased which was
factually erroneous.
8. I note that touching on the substantial questions raised,
when documents and police records placed before the ECC to prima
facie reveal that the 1st opposite party was the registered owner of
the lorry and the deceased was its driver when the accident took
place and since the 1st opposite party had not in their written
statement apparently denied the said relationship, the initial burden
of proving the employer- employee relationship should be deemed
to have been discharged by the applicants. Once the registration
certificate of the lorry stood in the name of the 1 st opposite party, a
prima facie legal presumption could validly be drawn that for all
statutory purposes he was the owner of the lorry and the person
who was driving the vehicle was employed by him. When a driver of
the lorry had admittedly met with his death from an injury due to the
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collapse of the goods transported on the lorry, the same is to be
prima facie treated as a death arising out of the employment. It is
trite and settled that when a decision is based on a complete lack of
evidence or disregards crucial, undisputed evidence or reads into
the evidence aspects not put forth thus proceeding on assumptions
without any valid basis, the same can only be termed as perverse
and hence unsustainable in law. Accordingly, I find merit in the
contention put forth by the learned counsel for the applicants that
there had been an error in appreciation of evidence by the ECC. In
view of the above, substantial questions of law drawn above are
answered in favour of the applicants and against the opposite
parties. Though empowered under Vijayaraghavan (supra), in the
facts and circumstances of the case which involves substantial
appreciation of disputed facts, I deem it fit and proper that the ECC
be directed to appreciate the matter afresh after affording the parties
an opportunity to adduce fresh evidence, if any.
9. Accordingly, the order dated 27.09.2018 in ECC No.887 of
2016 (WCC No.64/2010) of the Court of Employees Compensation
Commissioner (Industrial Tribunal), Thrissur is hereby set aside.
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The matter is remanded back to the ECC for fresh consideration in
accordance with law after affording the parties an opportunity to
adduce fresh evidence, if any. All questions in the matter concerning
fact and law are left open.
MFA (ECC) is allowed.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
