[Cites 4, Cited by 0]

Kerala High Court

Shajahan vs Hashim on 18 February, 2026

                                                    2026:KER:14787


M.F.A.(ECC)Nos.22 & 80 of 2024
                                     1


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE S.MANU

WEDNESDAY, THE 18TH DAY OF FEBRUARY 2026 / 29TH MAGHA, 1947

                     MFA (ECC) NO. 22 OF 2024

      AGAINST THE ORDER DATED 29.12.2023 IN ECC NO.53 OF
2021 OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL
TRIBUNAL), THIRUVANANTHAPURAM
APPELLANT/SECOND OPPOSITE PARTY IN THE CLAIM PETITION:

            BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED
            TC 83/C-2133, ANUGRAHA, M.G. ROAD, PAZHAVANGADI,
            TRIVANDRUM, REPRESENTED BY ITS SENIOR EXECUTIVE
            LEGAL, ANN MARY FRANCIS, AGED 29 YEARS, D/O
            P.J.FRANCIS, BRANCH OFFICE, 3RD FLOOR, PUKALAKKAT
            MADHURAMITTAM TOWER, EDAPPALLY PALACE ROAD,
            EDAPPALLY,
            ERNAKULAM, PIN - 695001.

              BY ADV SRI.THOMAS M.JACOB


RESPONDENTS/APPLICANT & 1st OPPOSITE PARTY IN THE CLAIM
PETITION:

     1      SHAJAHAN
            AGED 53 YEARS
            S/O ALIYARU KUNJU, KOCHAYYATHU PADEETTATHIL, PV
            EAST, THODIYOOR P.O., KOLLAM DISTRICT,
            PIN - 690523.
                                                  2026:KER:14787


M.F.A.(ECC)Nos.22 & 80 of 2024
                                 2


     2      HASHIM
            S/O HAMEED KUNJU, EYINIKKATTU PADEETTATHIL,
            EDAKULANGARA, THODIYOOR P.O., KOLLAM DISTRICT,
            NOW RESIDING AT THENGUVILA VEEDU, ELAMKULAM,
            MCPO, TRIVANDRUM, PIN - 695011.


            BY ADV SMT.STEFFY V.J.


      THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 09.02.2026,
ALONG WITH MFA (ECC).80/2024, THE COURT ON 18.02.2026 DELIVERED
THE FOLLOWING:
                                                       2026:KER:14787


M.F.A.(ECC)Nos.22 & 80 of 2024
                                     3


              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR. JUSTICE S.MANU

   WEDNESDAY, THE 18TH DAY OF FEBRUARY 2026 / 29TH MAGHA, 1947

                       MFA (ECC) NO. 80 OF 2024

      AGAINST THE ORDER DATED 29.12.2023 IN ECC NO.53 OF 2021
OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL),
THIRUVANANTHAPURAM
APPELLANT/APPLICANT:
           SHAJAHAN
           AGED 49 YEARS
           S/O ALIYARU KUNJU, KOCHAYYATHU PADEETTATHIL,
           PV EAST, THODIYOOR PO,
           KOLLAM DISTRICT,
           PIN - 690523.

            BY ADV SMT.STEFFY V.J.

RESPONDENTS/OPPOSITE PARTIES:
     1     HASHIM
           S/O HAMEED KUNJU, EYINIKKATTU PADEETTATHIL,
           EDAKULANGARA, THODIYOOR PO KOLLAM
           NOW RESIDING AT THENGUVILA VEEDU, ELAMKULAM, MCPO,
           TRIVANDRUM, PIN - 690523.
     2     M/S BAJAJ ALLIANCE GENERAL INSURANCE CO LTD.
           TC 83/C-2133, ANUGRAHA, MG ROAD, R PAZHAVANGADI,
           THIRUVANANTHAPURAM, PIN - 695023,
           REPRESENTED BY ITS MANAGER.

            BY ADVS.SRI.THOMAS M.JACOB - FOR R2
            SMT.V.MANGALA VENKETARAMAN

      THIS MFA (ECC) HAVING COME UP FOR ADMISSION ON 09.02.2026,
ALONG WITH MFA (ECC).22/2024, THE COURT ON 18.02.2026 DELIVERED
THE FOLLOWING:
                                                        2026:KER:14787


M.F.A.(ECC)Nos.22 & 80 of 2024
                                    4



                             S.MANU, J.
           --------------------------------------------------
                  M.F.A.(ECC)Nos.22 & 80 of 2024
            -------------------------------------------------
              Dated this the 18th day of February, 2026

                             JUDGMENT

These appeals arise from the order dated 29.12.2023 in

E.C.C.No.53/2021 on the file of the Employee's Compensation

Commissioner, Thiruvananthapuram. M.F.A.(ECC)No.22/2024 is

filed by the second opposite party before the Commissioner, the

insurer. Challenge is against granting of compensation on the

ground that there was no employer-employee relationship

between the respondents 1 and 2. In M.F.A.(ECC)No.80/2024

the applicant is seeking enhancement of compensation on the

ground that the Commissioner erred in not considering the case

as one of permanent total disability for the purpose of awarding

compensation.

2. In both cases substantial questions of law were not

framed at the time of admission. Hence, on hearing the parties, 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

the following substantial questions of law are framed for

consideration in these appeals:-

M.F.A.(ECC)No.22/2024:-

Whether the Commissioner erred in entering into the

finding on the basic jurisdictional fact of employer-employee

relationship solely relying on the admission by the 2 nd

respondent/first opposite party in the absence of any reliable

evidence adduced by the 1st respondent/the applicant.

M.F.A.(ECC)No.80/2024:-

Whether the Commissioner erred in law in not taking into

account functional disability of the applicant as the criteria for

granting compensation.

3. Parties will be mentioned in this judgment as they

are arrayed in M.F.A.(ECC)No.22/2024.

4. The 1st respondent approached the Employee's

Compensation Commissioner alleging that he was employed by

the 2nd respondent as a paid worker for operation and 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

maintenance in the lorry bearing registration No.KL 8 F 9916.

On 17.7.2019, when the 1st respondent was covering the vehicle

with tarpaulin after loading it with rice bags inside the FCI

godown at Karunagappally he accidentally fell down from the

top of the loaded rice bags and sustained serious injuries. He

was treated at the Taluk Hospital, Karunagappally and was

subjected to surgical procedures. He, on account of the

accident, turned unable to do any work and therefore sought

compensation for permanent total disablement.

5. The 2nd respondent filed written statement admitting

employer-employee relationship as well as the accident. The

appellant disputed employer-employee relationship between the

respondents in its written statement. The appellant further

contended that the 1st respondent was a paid worker of the FCI

godown and not an employee of the 2 nd respondent. Further the

appellant contended that the 1st respondent had not sustained

any disability. Claim regarding monthly wages made in the 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

application was also disputed. The applicant was examined as

PW1 and Exts.A1 to A11 were marked on his side. No evidence

was adduced by the opposite parties.

6. The learned Commissioner found that there was

employer-employee relationship between the respondents. The

Commissioner accepted that the monthly wages of the 1 st

respondent was Rs.8,000/-. As per Ext.A6 certificate issued by

a Doctor of the Department of Orthopedics of the Government

Medical College, Thiruvananthapuram loss of earning capacity

was considered as 50% and a compensation of Rs.3,75,528/-

was awarded with interest. For medical expenses, Rs.1,22,635/-

was awarded with interest. A cost of Rs.800/- was also granted.

7. Learned counsel for the appellant contended that the

finding of the Commissioner regarding the vital aspect,

employer-employee relationship is without any reliable evidence

on record. He hence submitted that the said factor is a

substantial question of law since it touches the basic 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

jurisdictional aspect. He submitted that there was no

documentary evidence to show that the 1 st respondent was

employed by the 2nd respondent. He submitted that the

appellant had filed two miscellaneous petitions to summon the

Chairman, the Kerala Headload Workers Welfare Board, Kollam

to produce membership details of the compensation given to the

1st respondent and also the details of compensation made by

the Board to him. Another petition was filed to direct the 2 nd

respondent to produce the muster roll, wages register and

salary vouchers. He contended that both petitions were rejected

by the Commissioner, causing serious prejudice to the appellant.

He submitted that the respondents had colluded to obtain

compensation and the learned Commissioner failed to properly

analyse the evidence as well as facts and circumstances to

ascertain whether there was employer-employee relationship.

He contended that the approach of the learned Commissioner

was perverse in this regard. The learned counsel further 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

submitted that the Commissioner cannot be faulted for taking

into account 50% as the loss of earning capacity on the basis of

Ext.A6 as no medical evidence was available regarding

functional disability alleged by the 1st respondent.

8. The learned counsel for the 1st respondent per contra

submitted that the admission by the 2nd respondent in his

written statement regarding employer-employee relationship

cannot be ignored. She also pointed out that in the very nature

of employment in a lorry owned by an individual, normally, no

records would be maintained either by the employer or by the

employee. She submitted that the accident occurred when the

1st respondent was working in the vehicle owned by the 2 nd

respondent. She submitted that there is no reason to disbelieve

the evidence of the 1st respondent. She further submitted that

the finding in this regard, being factual cannot be disturbed by

this Court in the appeal. She relied on the judgment of the

Hon'ble Supreme Court in Indra Bai v. Oriental Insurance 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

Company Ltd. [(2023) 8 SCC 217] to contend that the relevant

consideration for granting compensation is the functional

disability suffered by the applicant and not the physical

disability. She contended that the finding of the Commissioner

regarding the element of disability is legally unsustainable in

view of the law laid down by the Hon'ble Supreme Court in the

judgment cited.

9. The Commissioner concluded that there was

employer-employee relationship relying on the evidence of the

1st respondent and taking into account the admission by the 2 nd

respondent in his written statement. Further the learned

Commissioner relied on Ext.A11, copy of ID card issued by

Kollam District Goods Transport Workers Union to the 1 st

respondent. The 1st respondent in his evidence stated that he

had obtained membership in the CITU union of FCI and then

added that he also holds membership in the lorry employee

union of CITU. The learned Commissioner, on analysis of 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

evidence and pleadings, arrived at the conclusion that there was

employer-employee relationship. The said finding cannot be

held as one without any evidence on record. Findings on facts

by the Commissioner are not liable to be disturbed in an appeal

under Section 30 of the Employee's Compensation Act unless

they are without any supporting evidence or are perverse. Such

conclusions are not liable to be substituted adopting a different

view on the basis of same materials. Hence, the substantial

question of law in M.F.A.(ECC)No.22/2024 is answered against

the appellant. Reasons for rejection of the petitions filed by the

appellant have been given by the learned Commissioner in the

impugned order. I do not find any error in the decision of the

Commissioner in this regard.

10. In Indra Bai cited by the learned counsel for the 1 st

respondent the Hon'ble Supreme Court referred to various

previous judgments and held as under:-

2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

"28. In light of the aforesaid decisions and the definition of the term "total disablement" as provided by clause (I) of sub-section (1) of S.2 of the Act, it is the functional disability and not just the physical disability which is the determining factor in assessing whether the claimant (i.e., workman) has incurred total disablement. Thus, if the disablement incurred in an accident incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement, the disablement would be taken as total for the purposes of award of compensation under S.4(1)(b) of the Act regardless of the injury sustained being not one as specified in Part I of Schedule I of the Act. The proviso to clause (I) of sub-section (1) of S.2 of the Act does not dilute the import of the substantive clause. Rather, it adds to it by specifying categories wherein it shall be deemed that there is permanent total disablement."

11. In the case considered by the Hon'ble Supreme Court

disability was certified by a medical board as 50%. However,

the Commissioner accepted the case of the applicant that there

was permanent total disablement. The High Court, in appeal set 2026:KER:14787

M.F.A.(ECC)Nos.22 & 80 of 2024

aside the conclusion of the Commissioner and held that ends of

justice will be met with if 40% permanent disablement is taken

for computing the compensation. The Hon'ble Supreme Court

reversed the judgment of the High Court and restored the order

of the Commissioner. In view of the principles laid down by the

Hon'ble Supreme Court extracted above I answer the question

of law raised in M.F.A.(ECC)No.80/2024 in favour of the