MARIAMMA Vs. VARGHESE NEDUNGADAN

JUDGEMENT

(1.) 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").

(2.) 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.

(3.) 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.