ARUNKUMAR Vs. OMANA AMMA

JUDGEMENT

(1.) Employer has approached this court with this appeal assailing an order of Commissioner for Workmens Compensation when his conention that the deceased was not his workman and the accident had not arisen out of and during the course of employment were turned down. It is contended that there is no evidence at all to come to the conclusion that the deceased who died out of an injury sustained on falling into a well in the appellants establishment was a workman and that the accident had occurred during the course of employment. In the absence of evidence such finding can be said only as perverse and any finding without evidence will necessarily give rise to a substantial question of law. Therefore whether such a finding is possible on the basis of evidence is a substantial question of law to maintain an appeal under section 30 of the Workmens Compensation Act, 1923.

(2.) True, if the finding is rendered based on no evidence or the finding is such that it is so perverse as a reasonable authority will not arrive at based on the evidence on record, necessarily such a perversity in finding can lead to a question of law.

(3.) The accident is admitted by appellant. That the deceased fell in the well in the premises of his bakery is also admitted. Immediately he was taken to hospital and succumbed to injuries. There was a statement given by the deceased to the police. It was given in connection with an earlier case. The statement disclosed that he had stated that he had been the workman in the bakery of the appellant. This statement forms part of the record. Further, evidence from AW 3, an independent witness, a panchayat member shows that the deceased was a workman under the appellant in this bakery. He was working as salesman. AW 3 had visited, on earlier occasions also, the bakery and the deceased had served him tea. Thus it is in evidence that apart from baked items, tea was also sold in the bakery. It was stated that it was a bakery where soft drinks and beverages were also being served. In such circumstances it cannot be taken that there was no evidence on record to prove that the deceased was a workman. The version given by the coworker of the deceased produced before the Commissioner and the direct evidence of AW 3 are sufficient enough, in a trial before the Commissioner for Workmens Compensation, to come to a conclusion that the deceased was a workman in the bakery owned by the appellant. That much evidence is sufficient, in a trial before the Workmens Compensation Commissioner to arrive at such finding. Therefore it cannot be taken that there was no evidence at all to prove that he was a workman. The next question is as to whether the accident had arisen out of and during the course of employment. It is submitted that the deceased was a salesman, even admittedly in the claim petition and as deposed by AW 3. Therefore there was no occasion for him to go to the well and draw water. It was not as a part of his duty. So the injury sustained and the consequent death cannot be said to be during the course of employment. In other words it is contended that there shall be cogent relationship with the activity which resulted in the accident and the duty to be performed by the workmen concerned. In this respect much reliance is placed on the decision reported in Regional Director, E.S.I. Corporation v. Francis De Costa, 1996 ACJ 1281 (SC) and Travancore Titanium Products Ltd. v. Jerro, 2000 (1) KLJ 643.