This writ petition is filed in the year 2003 by the first opposite party in WCC No.3/1998 before the Commissioner for Workman's Compensation, Thiruvananthapuram, challenging Ext.P2 order passed by the Commissioner directing payment of Rs.2,07,980/- as compensation to the applicants therein, along with simple interest at the rate of 12% per annum from the date of death of the deceased, within 30 days of receipt of the intimation. 2. The respondents 1 & 2 herein are the applicants before the Commissioner. The claim was made on the basis that the husband of the 1st respondent, who is the father of the 2nd respondent, was an employee under the petitioner and he died on 3.4.1999 due to reasons arising out of and in the course of his employment. Brief facts alleged were that; the 2nd opposite party before the Commissioner, who is the 3rd respondent herein, is the registered owner of a 'Tractor' fitted with an 'Air Compressor' in which the deceased was employed as Operator. He was employed by the petitioner through the 3rd respondent, on the fateful day on which the Tractor over turned in a quarry causing fatal injuries to which the deceased succumbed on the same day itself.
3. The claim petition was contested by the petitioner inter alia refuting the allegations that he was the Contractor of the quarry. The 3rd respondent herein took a stand that the vehicle in question was having another permanent Driver at the time of the accident and that the deceased had drawn the Tractor without consent and permission and without there being any authority to drive such a vehicle. The Commissioner while considering the claim petition had framed the issues, including question as to who is liable to pay the compensation, if it is found that the applicants are entitled for compensation on account of death of the deceased, and as to whether the deceased employee was a 'workmen' as defined under the Act.
4. Before the Commissioner the 1st applicant (1st respondent herein) was examined as AW1 and Exts.A1 to A6 documents were marked from their side. The opposite parties as well as witnesses were examined as DW1 to DW3 and Ext.D1 document was marked on behalf of opposite parties. The Commissioner considered contents of Ext.A1 document, which is the FIR registered with respect to the accident. He had also relied on the 'Scene Mahazar', even though it is not marked as a document in evidence. Placing reliance on those 2 documents, the Commissioner arrived at a conclusion that the deceased was an employee in the quarry conducted by the petitioner. Without much discussion on the evidence, the Commissioner arrived at a conclusion that the deceased sustained fatal injuries in the course of employment under the petitioner and directed the petitioner to make payment of compensation.
5. Challenge raised against Exts.P2 is mainly on the aspect that there was absolutely no evidence adduced before the commissioner to prove that the deceased was employed by the petitioner. Learned counsel for the petitioner had drawn attention of this Court to the oral testimony of the 1st applicant, copy of which is produced as Ext.P1, in order to content that, even the applicants had not adduced any concrete and corroborative evidence affirming that the deceased was an employee under the petitioner. Further it is contended that the Commissioner had failed in adverting to the oral evidence of DW 1 to DW3 and also to the documentary evidences produced on behalf of the opposite party. It is the specific contention that the award was passed on a totally perverse appreciation of the evidence on record and the conclusions were arrived without their being any basis or support from the evidence adduced and without enumerating any proper conclusions.
6. Learned counsel appearing for respondents 1 and 2 had raised a preliminary issue regarding maintainability of this writ petition, on the basis that an effective remedy of appeal is provided under Section 30 of the Workmen's Compensation Act, 1983. It is contended that this writ petition is filed by adopting a dubious method, in order to circumvent the pre-requisite condition insisting upon deposit of the amount of compensation for filing any appeal, as stipulated under the proviso to Section 30(1). Since there is an effective alternate remedy available under the relevant statute, the writ petition is not maintainable, is the contention.
7. It is not in dispute that against Ext.P2 order the petitioner has got an effective remedy of appeal, as provided under Section 30. Learned counsel for the petitioner had pointed out that, this writ petition was entertained by this court and notice was issued to the respondents, as early as in the year 2003. It is further pointed out that this court had granted an interim stay with respect to execution of Ext.P2 Order, subject to condition of the petitioner remitting a sum of Rs.75,000/-, through order passed on 27.6.2003. It is also pointed out that the writ petition was dismissed for default on 29.9.2011, but the same was restored on 21.2.2014, subject to payment of cost of Rs.1,000/- to the High Court Advocates Welfare Fund Trust and Rs.4,000/- to the counsel appearing for the respondents.
8. Arguments of the petitioner is that, considering the fact that the writ petition was entertained and kept pending for a considerably long period after granting an interim order, it may not be proper and justifiable for this court to dismiss the case on the basis of availability of an alternate remedy. Learned Counsel had placed reliance on a decision of the Hon'ble Supreme Court in Ganga Retreat & Towers Ltd. And Another v State of Rajasthan and Others [(2003) 12 SCC 91], The hon'ble Supreme Court in the said case observed that “this Court in a number of cases, even after recording a finding that the writ petition was not maintainable and that the High Court ought not to have entertained it, has declined to interfere on the ground of non-maintainability where it is found, that the matter has been pending for long time and/or the High Court has already entertained the writ petition (albeit wrongly) and /or when to send the writ petition back would cause grave delay or harassment. In such cases this Court has proceeded to decide the dispute on merits”.
9. Relying on the above decision, the Apex court in KSEB v Kurien E Kalathil And Others [(2000) 6 SCC 293], observed that, dismissal of a writ petition which was entertained long back would resulted in miscarriage of justice on account of the lapse of time, which may result in foreclosure of all other remedies which could otherwise have availed by the petitioner. The remedies will become not efficacious at the present stage and in such cases considering the peculiar circumstances, the matter need to be examined.
10. Applying the above mentioned principle, it is evident that the writ petition, even though wrongly entertained by this Court, happened to be kept pending since the year 2003 onwards, after granting an interim order. The writ petition was once dismissed, but restored and again kept pending. This Court finds force in the contention that the dismissal of the writ petition at this stage on the ground of availability of an alternate remedy, would cause severe prejudice to the petitioner. Such remedies has become non-available and not efficacious because of the long lapse of time, and the petitioner will be prevented from availing any such remedy at this point of time.
11. Learned counsel for respondents 1 and 2 had raised contention that, even if the writ petition is entertained, this Court cannot have a re-appreciation of the evidence on record, in exercise of power vested under Article 226, as can be done in the case of an appeal. Even in such case only a judicial review is possible in view of the jurisdiction vested under Article 226, is the contention. In this regard it is also pointed out that, under Section 30 of the Act the appellate remedy is provided only to the limited extent of examining any substantial question of law involved. Therefore it is contented that unless it is established that any substantial question of law is involved, it is not justifiable for this Court to exercise a judicial review to consider sustainability of the order impugned .
12. In the case at hand, the main ground of challenge is that there is a total misappreciation of the evidence on record. In other words the impugned order is lacking basis, foundation or reasonings for the conclusions arrived, based on the evidence adduced during the trial, is the contention. The appreciation of evidence is totally perverse and illegal is the argument advanced. But question arises as to whether a misappreciation or perverse appreciation of evidence, even if assumed to be there, will amount to a substantial question of law. Learned counsel for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in Shakuntala v Prabhakar [2006 (4) KLT 1031 SC]. It is held that, a jurisdictional question will involve a substantial question of law. A finding of fact arrived without there being any evidence would also give rise to a substantial question of law. A question of law would arise when the finding is perverse in the sense that no legal evidence was brought on record. In a still later decision in Dinesh Kumar v Usuf Ali [(2010) 12 SCC 704] the Hon’ble apex court found that, a second appeal under section 100 CPC is maintainable when the High Court comes to the conclusion that the finding of the fact recorded by the court below are perverse or being based on no evidence or based on irrelevant materials.
13. Learned counsel submitted that the finding of the Commissioner that the deceased was employed under the petitioner was based on no evidence at all. Reliance placed on the Scene Mahazar, without marking of the said document before the Commissioner, is totally perverse, is the contention. At the most, there is only an oath against an oath, with respect to the question of employment. It is argued that reliance placed on the FIR and the Scene Mahazar cannot be taken as a laful evidence as held by this this court in Mohanan v State of Kerala [2011 (4) KLT 59].
14. Contentions raised on the ground of perverse appreciation of evidence is stoutly opposed by learned counsel for respondents 1 & 2. Attention of this Court is drawn to various statements in the deposition of the 1st respondent to the extent of identifying the 1st opposite party as the contractor who was running the quarry. It is contended that the Workmen’s Compensation Commissioner is expected to conduct only a summary trial and strict rules of evidence cannot be insisted upon in a claim under the Act, which is basically a welfare legislation.
15. While evaluating the rival contentions, this Court is of the opinion that the impugned order is lacking any elaborate consideration of evidence adduced on both side. Findings contained in Ext.P2 with respect to the employment relation is so cryptic that it is not discernible as to whether the Commissioner had considered the rival contentions based on evidence. Further, the question remains as to whether the reliance placed on the Scene Mahazar alone, in order to arrive at a conclusion that the deceased was employed under the petitioner, is legal and sustainable. All the above aspects and circumstances lead this Court to accept that there is a perverse appreciation of evidence or that the conclusions arrived has no basis or support from the evidence on record. Relying on the principles laid by the apex court referred in the foregoing paragraphs, these aspects can be considered as having the nature of a substantive question of law, which may enable the petitioner to maintain an appeal. This Court finds that a dismissal of the writ petition at this point of time on the basis of availability of alternate remedy, will be highly prejudicial. Hence this Court is of the considered opinion that a remand of the matter for a fresh disposal would suffice to meet the ends of justice. It is taken on notice that, the petitioner could succeed in by-passing the statutory liability for deposit of the amount of compensation, in case an appeal would have been filed against the impugned judgement. Therefore this Court is inclined to direct the petitioner to make deposit of the entire compensation awarded, while remanding the matter for a fresh consideration and disposal.
16. Under the above mentioned circumstances, this writ petition is allowed and Ext.P2 order is hereby quashed. It is pointed out that by virtue of amendments brought to the workmen’s Compensation Act 1923, which is now renamed as to the Employees Compensation Act, 1923, the competent authority to decide the claim is not the 4th respondent. Hence the 4th respondent is directed to forward the records of W.P.(C). No.3/1998 along with this judgment to the appropriate authority designated to deal with the applications for compensation. The said authority shall reconsider the case afresh on appreciating the entire evidence on record. It will be left open to that authority to consider and take appropriate decision on application if any, filed by any of the parties for adducing additional evidence. A fresh decision on the claim petition shall be taken considering the existing evidence as well as additional evidence if any adduced, through an order reflecting proper appreciation of evidence and enumerations of proper reasonings and conclusions.
17. The case shall be disposed of afresh at the earliest possible, at any rate, within a period of 3 months from the date of receipt of the records by the said authority, subject to condition that the petitioner herein is making deposit of the balance amount due under Ext.P2 order, including the portion of interest, before the said authority, within a period of one month from the date of receipt of a certified copy of this judgment.
18. It is made clear that, the authority concerned shall dispose of the matter on an independent consideration of merits of the claim based on the evidence on record, untramelled by any observations contained in this judgment on the factual aspects of the case.
19. It is further made clear clear that on failure of the petitioner to make deposit of the amount as directed above, Ext.P2 order will stand revived and the claimants will be at liberty to execute the said order.
C.K.ABDUL REHIM, JUDGE.
SKV