IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

WEDNESDAY, THE 29^TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946 MFA (ECC) NO. 90 OF 2019 ARISING OUT OF THE ORDER DATED 20.04.2018 IN ECC NO.436/2014 (OLD NO.7/13) ON THE FILE OF THE OF EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL), PALAKKAD APPELLANT/2ND OPPOSITE PARTY:

UNITED INDIA INSURANCE COMPANY LTD.

DIVISIONAL OFFICE, TIRUR.P.O.

MALAPPURAM DISTRICT, PIN-676101 BY ADV T.J.LAKSHMANAN IYER RESPONDENTS/APPLICANTS AND 1ST OPPOSITE PARTY:

1 KUNHI MOIDEEN S/O.KUNHAHAMED, THOOMBATH HOUSE, PUTHANPARAMP.P.O, MALAPPURAM DISTRICT, PIN-676501.

2 RUKHIYA W/O.KUNHI MOIDEEN, THOOMBATH HOUSE, PUTHANPARAMP.P.O, MALAPPURAM DISTRICT, PIN-676501

3 MUHAMED SHAFI ULLATH, S/O.KUNHAVARANKUTTY HAJI, ULLATT HOUSE, THIRURANGADI.P.O., MALAPPURAM DISTRICT, PIN-676306 BY ADVS.

ANEESH K.M, R1 & R2 SHASHANK DEVAN(K/000585/2018), R1 & R2 R.RAMADAS, R3 THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON

29.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 29^th day of January, 2025 This appeal is filed challenging the order dated 20.04.2018 in ECC No. 436 of 2014 (Old No.7/2013) on the file of the Employees Compensation Commissioner (Industrial Tribunal), Palakkad. Appellant, an insurance company, was the 2^nd opposite party before the Employees Compensation Commissioner (ECC) and respondents 1 and 2 were the applicants and 1^st opposite party respectively therein. Parties are hereinafter referred to as per their status before the ECC.

2. The applicants are the legal heirs of late Musammil, aged

21 years, who died in an accident while working as a driver of the Tempo Trax Cruiser owned by the 1^st opposite party. The applicants contended that late Musammil was earning a salary of Rs.10,000/- per month as the employees of the 1^st opposite party and that they are entitled to compensation of Rs.12 lakhs from the 1^st opposite party. The 1^st opposite party entered in appearance and filed written statement, admitting the accident and the employer-employee relationship with the deceased. However, it was stated that the salary of the deceased was Rs.2,000/- per month and that the vehicle had been insured with the 2^nd opposite party. The 2^nd opposite party, filed a written statement admitting that there was an insurance policy cover on the date of the accident. However, they denied all other material allegations raised in the application. It was contended that late Musammil was not an employee of the 1^st opposite party and had been employed by one M/s. Darul Huda Islamic Academy, Chemmad on a salary of Rs.2,000/- per month. The 2^nd opposite party, via the policy, had only undertaken to indemnify the 1^st opposite party against his liability towards his own employees. The risk of the drivers employed by other parties had not been covered by the 2^nd opposite party. Hence, the 2^nd opposite party was not liable to pay any amount as compensation to the applicants. The ECC framed five issues and the parties proceeded to adduce evidence. AW1 was examined and Exts.A1 to A4 were marked on the side of the applicants. No evidence, neither oral nor documentary was adduced by the opposite parties. The ECC, after hearing both sides, fixed the monthly salary of the deceased at Rs.8,000/- and rendered the impugned order holding that the applicants are entitled to receive a lump sum compensation of Rs. 8,90,840/- which had been calculated on the said monthly salary. This appeal is filed by the 2^nd opposite party, inter alia contending that the ECC erred in fixing Rs.8,000/- as the monthly salary of the deceased and the order is hence fit to be set aside.

3. The following substantial questions of law are suggested for consideration in this appeal:

(i) Whether the Employee's Compensation Commissioner is justified in passing an order by ignoring the statutory provisions of the Employees Compensation Act prevailing at the time of the accident with regard to the monthly wages of t