Divakaran Thompan vs Raman Narayanan

Sivaraman Nair, J.—This appeal arises from the order of the Commissioner for Workmen''s Compensation, Ernakulam, in W.C.C. No. 51 of 1980. The husband of the respondent herein fell from a palm tree while he was tapping toddy on 10-6-1978 as an employee of the appellant. He sustained serious injuries, was hospitalised and was permanently disabled.

Claiming that he was an employee of the appellant as a toddy tapper attached to toddy shops No. 37, of which the appellant was the contractor on 10-6-1978, he filed the application for compensation for permanent and total disability. He asserted that his monthly wage was Rs. 750/-. He, therefore, claimed Rs. 33,600/- as compensation. He supported his application by his sworn statement, which was recorded by the Commissioner. In his written statement, the appellant denied his accident as also his liability. He also asserted that the applicant was not in the court of appellant''s employment at the time when the accident was alleged to have happened. The applicant was examined as AW-1. He produced Ext. A1 medical certificate obtained from the Assistant Surgeon, Government Hospital, Muvattupuzha, to the effect that he was first treated in the Medical College, Arpookkara for "Traumatic Paraplegia" and later be was brought to Government Hospital, Muvattupuzha for follow up and further treatment. He certified the disablement as total and permanent. In this evidence as AW-1, the applicant stated that he was tapping palm trees belonging to Kalarikal Ali at about 8.30 a.m. on 10-6-1978 when the accident occurred. He asserted that it was during the course of his employment under the appellant that the accident took place. In cross-examination he asserted that he was tapping 7 palm trees a day and was delivering an average of 80 Litres of Toddy for sale in the appellant''s shop. He stood a long cross-examination fairly well. The applicant died on 2-9-1981 and his wife was brought on record. She was examined as AW-2. AW-3 was the wife of Aliyar, whose palm tree was being tapped by the applicant at the time of the accident. She stated that the applicant was an employee of the appellant that he was tapping toddy from the palm tree in her compound and was delivering toddy to shop No. 37 of the appellant. She asserted that she was an, eye witness to the accident. Her evidence was not shaken in cross-examination. AW-4 was another eye witness. He himself was a tapper. He supported the claim of the applicant in full measure.

The appellant produced Ext. 01 licence for tapping trees in favour of the applicant, Ext. 02 permit for transport of toddy and Ext. 03 proceedings of the Welfare Fund Inspector. Thodupuzha. Exts. 01 and 02 were produced to show that the applicant was tapping only 3 palm trees and none of them belonged to Ali or Aliyar, from whose the applicant fell down and sustained the injury resulting in total disablement. These were produced to show that the applicant was not in the course of his employment with the appellant at the time of the accident. Ext. 03 was produced to show that the annual income of the applicant was Rs. 6,611.75, which worked out only to slightly more than Rs. 500/- per month. The appellant examined the Assistant Excise Commissioner, who proved Exts. 01 and 02 as OW 1, and the appellant himself as OW 2. His Manager was examined as OW 3. The appellant as OW 2 and his Manager as OW 3 asserted that the applicant did not meet with the accident while he was employed by the appellant. Nor was he in the course of employment of the appellant when he tapped the palm tree belonging to Ali alias Aliyar.

The Commissioner preferred the evidence of the applicant and held, that he sustained injuries consequent on a fall from a palm free which he was tapping on 10-6-1978, during the course of his employment under the appellant and that the appellant was liable to compensate him. He also held, that the applicant was entitled to receive an amount of Rs. 32,340/- as compensation on the basis that his monthly wage was between Rs. 600/- and Rs. 700/-. The Commissioner allowed the application awarding an amount of Rs. 32,340/- as compensation and Rs. 265/- as costs. The appellant challenges that order of the Commissioner of Workmen''s Compensation in this appeal.

Counsel for the appellant submits that the finding of the Commissioner, that death or injury of the applicant was caused as a result of and in the course of his employment under the appellant is unsustainable. He referred us to Exts. 01 and 02 and asserted that those sufficiently indicated that the palm tree belonging to Ali or Aliyar was not licensed to be one of the palm trees which the applicant was to tap as an employee of the appellant. Those documents were proved by no less a person than the licensing and permitting authority--the Assistant Excise Commissioner as OW 1. Counsel submits that on the basis of these uncontrovertible documentary evidence, the Commissioner should have come to the conclusion that the fall of the applicant from a palm tree of Ali alias Aliyar was not in the course of employment under the appellant. Counsel for the respondent submitted that there was sufficient evidence to indicate that the applicant was tapping 7 palm trees per day and delivering at least 80 Ltrs. of toddy to Kavumkara Toddy Shop No. 37, of which the appellant was the contractor at the relevant time.

We are not impressed by Ext. 01 and 02. They are documents which ought to have been, ordinarily, in the possession of the tapper. They were however produced by the opposite party. They did not contain any date of issue. Ext. 01 did not contain the necessary particulars like the description and survey number of the properties from which toddy was to be tapped. Neither OW 2, nor his manager OW 3, nor OW 1 the licensing authority had actually verified the particular in those documents. The Excise Guard and Range Officer who had verified the application were not examined, nor were the verification reports marked. OW 1 submitted that the applications were submitted by the contractor and not the tapper. This statement was corroborated by OWs 2 and 3. OW 2 stated that 40 coconut trees and 20 palmyra trees were tapped for Kavumkara subshop. AW 1 had stated that there were 6 tappers including him in that shop. On a fair average, each tapper would have tapped 10 trees. The claim of the applicant was that he was tapping 7 trees, whereas Ext. 01 was inky in respect of three trees. The evidence of the applicant seems to us to be more reasonably approximate to truth. There again, if Ext. 02 the transport permit is correct, the applicant could deliver only 13.50 litres of toddy per day, whereas AWs 1 and 2 asserted that the quantity per day was 80 litres. Here again the applicants are nearer truth than the opposite party, since a toddy shop could not be conducted with six tappers delivering only about 100 litres of toddy per day. Two other important facts which emerged from the evidence are that though two trees were tapped in AW 3''s compound only one was licensed and numbered, and that the licence of applicant was used by his brother during his illness. We are therefore of the opinion that the Commissioner was right in preferring the more reasonably probable evidence of the applicants to the evidence of the opposite party.

Added to all that was yet another important circumstance. The annual income of the applicant was admitted to be Rs. 6,611.75. There is considerable force in the submission urged on behalf of the respondent, that the applicant could not have earned that income by tapping three palm trees per day and delivering 13.50 Ltrs. of toddy to the appellant. Necessarily, therefore, the applicant must have been a tapping more palm trees and must have been delivering more toddy to the appellant. The evidence definitely indicated that documents like Exts. 01 and 02 were got up according to the conveniences of the contractor without the tapper knowing any of their contents. Even the custody of those documents, were with the opposite party and the not with tapper as it ought to be. We are of the opinion, that the Workmen''s Compensation Commissioner did not act arbitrarily or illegally in accepting the evidence of the applicant, that he was tapping seven palm trees and not three only for the appellant as disclosed by Ext. 01 and 02 documents, and that it was while tapping one of such trees that he fell down and Sustained injuries.

The only question which remain for consideration is whether the amount of compensation awarded by the Commissioner on the basis of Ext. 03 is correct or not. The annual income of the applicant for the year 1978-79 as declosed by Ext. 03 and was Rs 6,611.75. That works out to slightly more than Rs. 550/- per month. In the absence of any better evidence, that has to be taken as the monthly wages of the applicant. The amount of compensation for permanent and total disablement of a person in the wage group of Rs. 500/- to Rs. 600/- as per schedule IV of the Workmen''s Compensation Act would be Rs. 30,214/-. The Commissioner adopted his wage group to be between Rs. 600/- and Rs. 700/- and therefore awarded Rs. 32,314.00 as compensation. In the absence of any better evidence, we have to bold that the applicant was entitled only to compensation of Rs. 30,214/- instead of Rs. 32,314/-, since Ext. 03 disclosed that he was in the wage group of Rs. 500/- to Rs. 600/-.

Counsel for the appellant urged before us, that the applicant died on 2-9-1981 as a consequence of the fall from the palm tree on 10-6-1978 and therefore he was entitled to be compensated for death and not for permanent and total disablement. He relies on the statement in the evidence of OW 2 to the effect, that the death of her husband was due to the fall from the palm tree. Counsel submits, therefore, that the amount of Rs. 21,600/- which is the compensation due in the case of death of an employee in the wage group of Rs. 500/- to Rs. 600/- alone could be awarded to the appellant. We are not inclined to accept this submission. The accident was on 10-6-1978 and the death was more than three years thereafter on 2-9-1982. The applicant claimed compensation for permanent and total disablement and not for death. Apart from the isolated statement in the evidence of OW 2, that the death was due to the fall, there is no other evidence that the fall was the proximate cause of the death. In the absence of expert evidence in this regard, which the opposite party could have called and did not we are inclined to hold, in view of the fairly long interval between the fall and the death, that the fall was not the proximate cause of the death, and therefore the applicant is entitled for compensation for permanent or total disablement. We are not persuaded to venture a guess that death which occurred much later and long after he had given evidence in support of his application was due to the fall. Even otherwise, we are of the opinion that if there are two reasonably possible views which an authority can take about the evidence before it under a beneficial and welfare legislation, the authority does not go wrong in adopting the one which is more favourable to be disadvantaged employee.

The appeal is partly allowed to the extent of modifying the amount of compensation as Rs. 30,214/- instead of Rs. 32,314/-. The appeal is dismissed in all other respects. The appellant will pay the costs of the respondent before the Commissioner will release to the respondent the amount of compensation as modified above and costs and return the balance amount, if any, to the appellant.