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Judgment
K. Vinod Chandran, J.—These are two appeals filed by the dependents of two deceased workmen, aggrieved by the common order of the Workmen''s Compensation Commissioner, dismissing their claims for compensation under the Workmen''s Compensation Act, 1923 (hereinafter referred to as "W.C. Act"). The brief facts necessary for consideration of these appeals are that three persons, by name Martin. E.D., Mani. M.N. and Anil, died in a blast that occurred in a shed wherein manufacture of fire works were carried on. The said shed was situated in the property of the Opposite Party (the respondent herein), who is alleged to have been carrying on the establishment; impleaded as employer before the Commissioner. M.F.A. No. 60 of 2009, arising from W.C.C. No. 95 of 2000, is filed by the widowed mother and brothers of the deceased Mani. M.N. while M.F.A. No. 51 of 2009, arising from W.C.C. No. 94 of 2000, is filed by the parents and sister of the deceased Martin. No claim seems to have been filed by the dependents of Anil. The claim petitions were considered together on the application for joint trial filed by the applicants by reason of the fact that death of both workmen resulted from the same accident and the Opposite Party, employer, is also the same.
The Workmen''s Compensation Commissioner framed four issues for consideration in the case, but confined his discussion and findings to the issues 1and 2. Since the said issues regarding the status of the deceased under the Workmen''s Compensation Act and their employee/employer relationship with the Opposite Party was found in the negative, the claims were rejected. We are also, in the above appeals, concerned only with the said issues, more specifically the factum of the establishment being carried on by the Opposite Party.
We were ably assisted by the learned counsel for the appellants Smt. Sherly. S.A., nominated by the Kerala High Court Legal Services Committee and the learned counsel for the respondent Sri. Arun Bechu. N.N.
The learned counsel for the appellants would contend that the findings regarding possession of the land in which the establishment was run and the ownership of the establishment were based on irrelevant material and can only be termed to be perverse. Besides one of the applicants, in both the claims, being examined as A.W.1 and A.W.2, one witness to the incident, who is a local resident, and another co-worker were examined respectively as A.W.3 and A.W.4. Both the said witnesses have spoken about the establishment carrying on the manufacturing of fire works that is owned by the Opposite Party. That the accident occurred in the property owned by the Opposite Party cannot at all be disputed. The learned counsel would rely on the judgment of the Munsiff''s Court, Aluva in O.S. No. 507/1996 and 640 of 1996 dated 25.09.2003 to contend that the ownership and possession of the property, by the said judgment, has been clearly established to be on the Opposite Party. The reliance on the judgment of the Judicial First Class Magistrate-II, Aluva in C.C. No. 72 of 2001 dated 19.03.2005 acquitting the Opposite Party in the crime registered pursuant to the blast under the Explosives Act and the Rules thereunder was erroneous. It was submitted that going by Section 42 of the Indian Evidence Act, 1872, it cannot lead to a conclusive proof and even relevance being confined to the context of such matters being of a public nature, it cannot even be relevant in the proceedings before the Commissioner. The reliance placed on Exhibit D1 before the Commissioner also cannot be sustained. The said document merely shows the existence of an order of the District Collector directing the transfer of the establishment to some other premises. There is nothing on record to assume such transfer has taken place except the interested version of the Opposite Party.
The learned counsel for the respondent would counter the arguments of the appellants, both on factual and legal aspects. It is the case of the respondent that Section 2(1)(d) of the W.C. Act defines "dependant". In accordance with the said definition, while sub-clause (i) makes a widow, a minor son, off-spring or a widowed mother a dependant on the mere existence of such relationship, sub-clauses (ii) and (iii) postulates dependency wholly or in part on the deceased workman. The learned counsel would specifically refer to sub-clause (iii), wherein a parent other than a widowed mother needs to specifically plead and prove his or her whole or part dependency on the deceased workman; to maintain a claim for compensation. In W.C.C. No. 94 of 2000, it was the contention that the parents having not so pleaded, could not raise a valid claim under the Act and even A.W.3, who is admittedly married, also could not raise such a claim. The learned counsel would also contend that u/s 22(2)(b) of the W.C. Act, the application for compensation is to specify the date of service of notice of the accident on the employer and on omission, the reasons for such omission. Read with Section 10, in the instant case, admittedly no notice having been served, it was not competent to entertain the claim. In support of the findings of the Commissioner regarding the ownership of the establishment; it is his contention that the same is in the realm of facts and this Court cannot interfere or intermeddle with such findings of fact; especially since the impugned order does not give rise to any question of law. The appreciation of evidence, according to him, also cannot be said to be perverse. The factum of the proceedings before the Collector and the subsequent shifting of the establishment were spoken to by D.Ws 1 and 2, whose complaint in fact led to Exhibit D1 being passed by the District Collector. Two other local people, D.Ws 3 and 4, the former being the father of the deceased Anil, would also show that the Opposite Party was not running the establishment in the said property. The witnesses other than the claimants examined by the applicants are merely foisted to speak about the incident without having actually witnessed it.
We would first deal with the legal questions raised by the counsel for the respondent/Opposite Party. The entitlement of a relative of deceased workman to file a claim is a mixed question of law and fact. Even going by the contentions of the learned counsel, it is clear that on dependency being established, whether it be whole or part, a parent of the applicant would be entitled to file a claim. The issue of dependency or status or relationship of the various applicants with reference to the deceased workman was never an issue before the Commissioner. True, the claim for compensation was dismissed by the Commissioner to the benefit of the Opposite Party and fully exonerating him from any liability. But, this contention has not been raised before the Commissioner and such issue having not been examined by the Commissioner and no such discussion having been made in the impugned order, we cannot say that the said question arises from the impugned order. So is the case with respect to the issuance of notice or the lack of it, which again is a mixed question of law and fact. We only notice that the proviso to Section 10 lifts the bar with respect to the entertainment of a claim for want of, or any defect or irregularity in a notice; specifically in the event of the claim being made with respect to the death of a workman. This aspect also has not been raised before the Commissioner; nor examined in the impugned order. In the nature of the orders we propose to pass, we restrain ourselves from making any observations regarding these issues to avoid the evil of pre-empting the original authority from considering the said issues. Despite the persuasive and tenacious arguments addressed by the learned counsel for the respondents, we are not inclined to look into the matter at this stage, more so for want of sufficient material.
The learned counsel for the appellants would, however, strenuously urge the consideration of the factual findings regarding the ownership of the establishment entered into by the Commissioner. The learned counsel would contend that if this Court holds that the said findings are perverse and does not emanate from the records of the case; then necessarily it would have to be set aside in appeal and such action on the part of the appellate Court would not be beyond the scope of jurisdiction conferred by the Act.
We have looked at the specific findings regarding the ownership. The reliance placed by the Commissioner on the judgment of the criminal court; on the insufficiency of evidence adduced in the criminal case, to find the Opposite Party to be not in possession of the shed cannot be sustained. As contended by the learned counsel for the appellants, such findings cannot be said to be conclusive u/s 42 of the Indian Evidence Act. The judgment does not relate to any issue of public nature and, hence, cannot be said to be relevant to the enquiry under the W.C. Act. Placed in juxtaposition is the judgment of the civil court in O.S.Nos.507/1996 and 640/1996 referred supra, wherein, again, the issue of ownership and possession came to be examined.
We cannot also concur with the findings of the Commissioner based on the proceedings No. M4-20098/98 dated 23.05.1998 of the District Collector, which is an order directing transfer/shifting of the establishment manufacturing fire works. It indicates that the Opposite Party had a valid licence till 31.3.1998 and had been continuing even after the expiry of the said licence. The said proceedings of the District Collector is dated 23.05.1998; the accident occurred on 27.11.1999. What is there to show that what was directed in Exhibit D1 was complied with? The mere fact of the existence of such direction cannot lead to the assumption that the directions were complied with. The learned counsel for the respondent/Opposite Party placed much reliance on the evidence of D.Ws 1 and 2, who are stated to be siblings and initiators of the complaint leading to Exhibit D1. A reading of their deposition would indicate that though they assert that the Opposite Party had shifted his establishment manufacturing fire works from the premises in which the accident occurred, they would admit to there being carried on in the said property a similar establishment. However, they feigned ignorance as to who the owners are or as to whether it was carried on with valid licence. Examining such statements in the context of they being the objectors to the Opposite Party carrying on unlicensed manufacturing activity of fire works, we have no hesitation to hold that the witnesses are totally unreliable. Coupled with this is the assertion of the Opposite Party that he had shifted his establishment and his children were carrying on similar activities with valid licence on other premises. Despite his affirmation to produce substantiating documents, we do not see anything having been produced.
On going through the deposition of the two other local people examined by the Opposite Party, being D.W.3 and D.W.4, we find an unexplainable anxiety in these witnesses to depose about the deceased workmen being employed in other avocations rather than fire works manufacture. D.W.3 is the father of one another person, by name Anil, who met his death in the very same accident. We see that the F.I.R. in the crime registered was on the basis of the statement made by the said Anil, at the hospital, just before his death. He categorically states that while himself and the two other deceased were working in the fire works manufacturing establishment of the Opposite Party; the accident/blast occurred. D.W.4 also would confirm the existence of a fire works manufacturing unit in the property in which the blast occurred. He too feigns ignorance about the ownership, but asserts that the Opposite Party was not the owner. In the totality of the circumstances and the discussion of the evidence adduced, we are of the definite opinion that the findings of the Commissioner with regard to the ownership of the establishment in which the accident occurred and the absence of a direct nexus with the status of the Opposite Party as the employer of the deceased workmen, is perverse. No prudent man could have arrived at such conclusions. We are, hence, convinced that the said findings are to be set aside.
In the light of the above discussion, we have to necessarily conclude that the above matter requires a reconsideration by the Workmen''s Compensation Commissioner. While holding that the evidence on record is insufficient to exonerate the liability of the Opposite Party as an employer by reason only of his contentions regarding the ownership and possession of the establishment, we, however, leave the question open, in the event of parties adducing further evidence on the issue. For that purpose, the impugned order is set aside and the matter is remanded to the Commissioner for de novo consideration. The Commissioner shall examine the issue afresh, keeping in mind the observations made above regarding the factual findings entered earlier. The parties shall appear before the Commissioner on 20th August, 2012. The Commissioner shall give either parties an opportunity to take further proceedings in the matter and the same shall be posted for further evidence within a month therefrom. The Commissioner shall pass final orders before the end of December, 2012. Since the appellants were represented in these appeals by the counsel appointed by the High Court Legal Services Committee, if applicants do not appear before the Commissioner on the date specified, the Commissioner shall issue notice to such applicants and time and manner of disposal of the claims specified by us above shall start running from the first day of appearance of such claimants. The appeals are allowed and the applications before the Commissioner for Workmen''s Compensation, Ernakulam are restored to its file for de novo consideration.
Before parting with the case, we reiterate our appreciation for the efforts taken by both the counsel in presenting the case before us, especially the lucid manner in which it has been done and particularly the tenacity of the learned counsel for the respondent/ Opposite Party.