IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2009 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.NO.1102 of 2005 & C.M.P.No.6180 of 2005 M/s.The New India Assurance Company Limited, Paramathi Road, Namakkal . . Appellant Vs. 1)K.Gopal 2.)P.Ramasamy . . Respondents Prayer:The civil miscellaneous appeal is filed against the order dated 22.03.2002 passed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Salem in W.C.Case No.394 of 2000 received by the appellant. For Appellant :Mr.C.Ramesh Babu For Respondents:No appearance JUDGMENT
The above civil miscellaneous appeal has been filed by the appellant/second opposite party against the decree and judgment passed by the Commissioner for workmen’s compensation (Deputy Commissioner of Labour, Salem) in W.C.Case No.394 of 2000 dated 22.03.2002 awarding a compensation of Rs.1,34,400/-
2. Aggrieved by the said order, the appellant/The New India Assurance Company Limited, the second opposite party has filed the above appeal.
3. The short facts of the case are as follows;-
The applicant was a Cleaner in the lorry bearing registration No.TN-28-E-7512, which belongs to the first opposite party namely one P.Ramasamy. On 18.05.1999, at about 06.00 p.m. when the applicant was on duty, he went along with his employer/first opposite party’s son in a Hero Honda Motorcycle to buy some spare parts for the above said lorry. While he was travelling as a pillion rider, the Hero Honda motorcycle met with an accident at Namakkal to Paramathi road, near lorry owners petrol bunk. In the result, he fell down and sustained fracture injuries in his left leg. Immediately he was admitted in Aravinth nursing home, Namakkal as inpatient. Regarding the said accident, the police attached to the Namakkal Police Station has registered a criminal case in Crime No.918 of 1999 on an alleged offfence under Sections 279 and 338 of I.P.C.
The applicant further stated that in the course of employment as a Cleaner under the first opposite party/employer, the said accident had happened. He was drawing a salary of Rs.3,000/- per month, during this period. Hence, the claimant has filed the compensation petition, claiming a compensation of Rs.3,00,000/- against the first and second opposite party namely the New India Assurance Company Limited, Namakkal, who is the insurer of the lorry bearing registration No.TN-28-E-7512. It is relevant to note that the applicant was a Cleaner of the said lorry bearing registration No.TN-28-F-7512, which belongs to the first opposite party.
4. Supporting his case, the applicant has filed four documents namely 1) first information report 2) registration certificate 3) Insurance policy and 4) wound certificate.
5. The second opposite party has filed counter statement and resisted the claim. The second opposite party does not admit the employer/employee relationship between the applicant and the first opposite party. The second opposite party denied the said accident and submitted that the accident did not take place during the course of employment of the applicant under the first opposite party. Further, the age and income of occupation of the applicant was not admitted. The compensation claimed by the applicant is also on the higher side. The applicant has to prove that the employer’s son, who was riding the hero honda motorcycle, to buy spare parts for the said lorry, along with the pillion rider, had a valid driving licence during the relevant period.
6. The Deputy Commissioner of Labour after receiving the counter statement conducted adjudication proceedings. The first opposite party/employer did not appear and hence he was set exparte. On the applicant’s side, the applicant was examined as PW1 and one Kadiravan was examined as PW2. On the side of the second opposite party, i.e. insurance company, one R.Sivasubramaniam was examined as RW1.
7. The Deputy Commissioner of Labour after considering the claim application and counter statement of the insurance company, evidence of the doctor and claimant has framed five issues namely; 1) Whether the applicant was employed under the first opposite party and had sustained injuries in the course of employment? 2) What is the age and monthly income of the applicant? 3)What is the loss of income? 4) What is the quantum of compensation that the applicant is entitled to? and 5) Who shall pay the compensation?
8. PW1, the claimant tendered his evidence before the Deputy Commissioner of Labour stating that on 18.05.1999, he went to buy some spare parts for the first opposite party’s lorry bearing registration No.TN-28-E-7512, in motorcycle, as pillion rider. At that time, the accident happened. He was thrown out from the motorcycle. In the result, his left leg bone was fractured. In the said accident, the First Information Report was registered and the same was marked as Ex.P1. Further, supporting his claim case, the applicant marked registration certificate as Ex.P2 and insurance policy was marked as Ex.P3; Wound certificate as Ex.P4; X’ray as Ex.P5 and disability certificate as Ex.P6.
9. On behalf of insurance company one R. Sivasubramanian was examined as RW1. He stated in his evidence that the claim form has been submitted by the first opposite party, who had narrated that his vehicle TN-28-E-7512 i.e lorry was parked in an Automobile shed due to repair and that for repairing the same, the owner (employer) of the lorry sent the applicant to buy spare parts along with his son. Both went in a hero honda motorcycle TN-28-D-8838 to purchase the said spare parts. At that time, a vehicle suddenly crossed in front of the motorcycle and so the rider of the motorcycle suddenly applied brake. In the result, the pillion rider/applicant was thrown out from the motorcycle, and the applicant sustained injuries. Further, in the claim form it has been stated that the employer himself had sent the applicant to buy spare parts along with his son. Both went in a hero honda Motorcycle bearing registration No. TN-28-D-8838 to purchase the said spare parts. At that time, a vehicle suddenly crossed in front of the motorcycle and so the rider of the motorcycle suddenly applied brake. In the result, the pillion rider/applicant was thrown out from the motorcycle and the applicant sustained injuries. Further, in the claim form it has been stated that the employer himself had sent the applicant to buy spare parts for the lorry. Complaint to the police was also made by the hospital authorities, when the applicant was being treated at the hospital. After considering the evidence of both sides and the contents of claim form, and doctors evidence, the Deputy Commissioner of Labour, has decided that while the applicant was an employee employed as a cleaner under the first opposite party/employer, the accident had occurred. On the basis of Doctor’s evidence, the Tribunal decided the quantum of compensation.
10. Regarding the nature of injuries, one Doctor S.Kadiravan was examined and he has stated in his evidence that the applicants left leg bone was fractured for which surgery was done and a plate had been fixed. The said plate had been removed after one year. Thereafter, X’ray was taken. The X’ray reveals that the bone has been bent. So, the applicant is suffering constant pain and the extent of disability was fixed as 50%. Supporting this, the Doctor had given a disability certificate as Ex.P6.
11. The Deputy Commissioner of Labour has decided that the applicant was an employee under the first opposite party and the first opposite party has registered his vehicle bearing registration No.TN-28-E-7512 with the second opposite party. As such, the total compensation is liable to be paid by the insurance company. The Deputy Commissioner of Labour decided on the quantum of compensation as below;-
That the applicant’s income was Rs.2000/- as per Workmen Compensation Act. The claimants age was fixed as 20 and he decided that the appropriate factor is 224 and disability was taken as 50%
The loss of earning capacity due to disability = 2000 X 60 X224 X 50/ 100 X 100 = Rs.1,34,400/-
Accordingly, the Tribunal awarded a sum of Rs.1,34,400/- as compensation and ordered the second opposite party to deposit the same into the Court.
12. The appellant has contended, in his appeal, that the applicant, though a cleaner of lorry, did not suffer any injury when the first opposite party’s vehicle was not put to use on the road on the relevant date, for which the appellant cannot be made liable even though the said lorry was insured with them by the first opposite party. As per terms and conditions of the policy, the applicant has never met with any accident while he was travelling in the lorry, as a cleaner, and that the said lorry was actually out of the road on the relevant date due to some repair. The applicant was travelling as a pillion rider in a motorcycle with his employer’s son. At that time, the accident had happened. This relevant period is not in the course of the employment. So, the employer is not liable to pay compensation under Section 3 r/w Section 4 of the Workmen Compensation Act. The appellant further contended that the Deputy Commissioner of Labour was wrong in holding that the injury arose out and in the course of employment, when the applicant had admittedly met with a road accident while he was travelling as a pillon rider on a motor cycle on the relevant time, with the son of the owner of the lorry.
13. The learned counsel for the appellant referred a case law reported in 2002 ACJ 378 (The New India Assurance Company Limited vs. A.Sharita Bivi and ors) and the relevant head notes is as under;
“Death of driver while performing the duties as an employee and not as a driver – Accident occurred when driven after collecting rent from some third parties as per directions of the owners of vehicle was proceeding to meet him on his cycle – whether the insurance company is liable to held; no; liability covers the driver only while engaged in driving the vehicle; owner of the vehicle held liable to pay compensation.”
14. For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that the applicant was an employee under the first opposite party as a Cleaner in his lorry bearing registration No.TN-28-E-7512. The said lorry was parked in a shed due to repair. Normally a cleaner is entrusted to do an assorted variety of work in the operation of a lorry. For example 1) If a lorry breaks down, he has to buy spare parts 2) If fuel shortage arises or the vehicle runs out of fuel, the cleaner has to purchase the same and other assorted types of work. Further, a cleaner working hours are odd and cannot be fixed on a definite scale.
15. In the instant case, on employer’s orders, for the purpose of carrying out repairs on the lorry, the applicant was sent along with his son to buy spare parts for the said lorry. It is relevant to note that in the said lorry, he was the cleaner. If cannot be sated that a cleaner’s job is only during the period of travel in the lorry but even for getting the lorry into a fit condition to make it roadworthy, his services are essential. As such, during the performances of this type of service, the applicant has gone out to purchase the spare parts for lorry. So, the citation cited by the learned counsel for the appellant is not applicable in the present case.
16. Moreover, the employer submitted the claim form before the insurance company. In that form, the particulars of the applicant is available i.e. he was working under the first opposite party during the relevant period. This fact has not been disputed by the insurance company by way of approving or rejecting the claim form. So this Court, confirms the order of the Deputy Commissioner of Labour, Salem, on the principle of employer/employee relationship.
17. Regarding the quantum, the Deputy Commissioner of Labour has come to a conclusion on the strength of the doctor’s evidence and disability certificate on the basis of G.O.Ms.No.625 Labour and Employment Department, dated 25.03.1995. Based on the above, he has adopted the method for computation of compensation as 2000X60X224X50/100X100 = Rs.1,34,400/-. This Court could not find any error on the quantum of compensation awarded by the Deputy Commissioner of Labour, Salem, in W.C.No.394 of 2000 dated 22.03.2002 and the order is found to be equitable and fair.
18. Therefore, the Court directs the appellant/New India Assurance Company Limited to deposit the award amount as per order of the Deputy Commissioner of Labour, Salem, in WC No.394 of 2000 dated 22.03.2002, within a period of six weeks. The said accident occurred in the year 1999. So, it is open to the respondent/applicant to receive the balance amount lying to the credit of WC NO.394 of 2000 on the file of Deputy Commissioner of Labour, Salem by filing necessary payment out application in accordance with law.
19. In the result, the civil miscellaneous appeal is dismissed. Consequently, the award passed by the Deputy Commissioner of Labour, Salem in WC No.394 of 2000 is confirmed. Accordingly, connected miscellaneous petition is closed. The parties are directed to bear their own cost in their appeal.
JIKR
To
The Deputy Commissioner of Labour,
Salem