IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.03.2008 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.M.A.No.362/2002 Raja @ Manicka Sundaram .. Appellant/Opposite Party Versus 1.Mrs.Saraswathi 2.Mrs.Prema 3.Minor Deepak rep.by his mother and guardian Mrs.Prema 4.Rasappan .. Respondents/Applicants Appeal preferred under section 30 of the Workmen's Compensation Act, 1923 against the order dated 26.7.2001 in W.C.No.201 of 2000 on the file of the Commissioner for Workmen's Compensation and Deputy Commissioner of Labour [Incharge], Salem-7. For Appellant : Mr.N.A.Ravindran For Respondents : Mr.M.M.Sundresh JUDGMENT
This appeal is directed against the order passed by the Commissioner for Workmen Compensation, Salem-7 in WC.No.201/2000 dated 24.07.2001, by the opposite party against the grant of compensation to the applicants.
2.The opposite party is the appellant. The appeal has been preferred by the opposite party against the grant of compensation in favour of the applicants.
3.The applicants in their claim petition have stated that the deceased Murugesan was employed under the opposite party as a workman and on 07.09.1999, when the deceased Murugesan was on his work out of and in the course of the employment, he died on the spot and he was lying dead in the place where the cement bags were kept. They also stated that the deceased was earning a monthly wages of Rs.2,000/-. The applicants claimed Rs.3 lakhs as compensation. The opposite party denied the averments made in the claim petition and he also denies the employment, salary and the age of the deceased. The Commissioner after considering the facts and circumstances of the case, framed the following issues:-
“1.Whether the deceased Murugesan was a workman as per Act?;
2.Whether the accident arose out of and in the course of employment?; and
3.What is the age, wage and quantum of compensation?”
On the side of the applicants, two witnesses were examined and four documents were marked and on the side of the respondent Corporation, only one witness was examined and no document was marked.
4.The Workmen Compensation Commissioner had, after a full fledged enquiry, came to the conclusion that the applicants/dependents of the deceased workman are entitled to a compensation of Rs.1,74,703/- towards compensation and the opposite party/appellant should have deposited the said amount within a period of 30 days and in default to pay the same with interest at 12% per annum till the date of deposit.
5.The learned counsel for the appellant/opposite party would submit in his argument that the deceased Murugesan was not coming under the definition of “Workman” under the opposite party and the Commissioner had erroneously concluded that the deceased Murugesan was the workman under the appellant and he died in the course of employment and therefore, the compensation awarded by the Commissioner was without any basis. He would further submit in his argument that the applicants who are said to be the dependents of the deceased Murugesan did not produce any eyewitness to the accident and with regard to the age and income of the deceased person and therefore, the entire decision of the Commissioner is not sustainable in view of lack of evidence. Therefore, he would submit that the order passed by the Workmen Compensation Commissioner stating that the opposite party/appellant herein, is liable to pay compensation to the claimants/dependents is without any basis. Therefore, the order should be set aside and the appeal to be allowed.
6.The learned counsel for the respondents 1 to 3/applicants would submit in his arguments that the applicants had examined A.W.1 and A.W.2 and had produced Ex.A.1 to A.4 in support of their case and that will clinchingly show that the deceased Murugesan was working under the second opposite party. In turn, the Principal Employer, viz., the first opposite party/appellant is liable to compensate the death of Murugesan who died in the course and arising out of employment and therefore, the compensation granted by the Commissioner is perfectly alright and the appeal to be dismissed.
7.On a careful consideration of the arguments advanced on either side and the evidence adduced on both side, we could see that the deceased Murugesan had met an accident in the work spot in Nadupalayam Overhead Tank work and he succumbed to the injuries. The Postmortem Certificate produced by the applicants in Ex.A.4 would go to show that the deceased Murugesan was dead due to the injuries sustained in the accident and no poisonous substance was detected in the Viscera. P.W.2 who spoke about the death of Murugesan that he met an accident while he was lifting the cement bag and this could certainly be taken place only at the time of and in the course of employment. It is also seen from the evidence of R.W.1, the opposite party, that he was undertaking contract work of Nadupalayam Overhead Tank work as a Contractor. There is no doubt that the accident had happened at the work spot and Murugesan was found dead at the work spot only. Therefore, the circumstances would speak to the effect that the deceased Murugesan had died in the course and arising out of the employment of constructing the overhead tank work in which R.W.1 is the Contractor. After the amendment of Section 2[n] as to the definition of “Workman” in the year 2000, the casual workers who are employed for the purpose of construction work are also coming under the category of “Workman” as defined under the Workmen Compensation Act. Therefore, the Commissioner was not wrong in adjudging the deceased Murugesan as Workman under the opposite party who met an accident and died in the course and arising out of employment of constructing the overhead tank.
8.Nextly, we have to see whether the compensation as calculated by the Commissioner is in accordance with
law? The age of the deceased Murugesan was mentioned as 30 years in the Postmortem Certificate. The monthly wages for the deceased was said to be Rs.1,000/- per month. This was also spoken to by P.Ws.1 and 2. The employer of the deceased Murugesan, viz., the opposite pary should have shown to the contrary. The Commissioner has calculated the wages for the construction worker as per G.O.[2D] No.91, Labour and Employment [J-1] Worker under Mazdoor Category II and fixed at Rs.60/- per day for a monthly wages of Rs.1,680/- and had calculated the compensation as per Section 4[1][b] of the Workmen Compensation Act. Accordingly, the relevant factor was fixed at 207.88 for the age of 30 and a sum of Rs.1,74,703/- was arrived at as compensation payable to the dependents/applicants. There is no infirmity found in the said calculation of compensation by the Commissioner. Therefore, this court finds no merit in the appeal and therefore, the order passed by the Commissioner for the grant of compensation of Rs.1,74,703/- to the applicants/dependents is upheld and the appeal preferred by the opposite party is liable to be dismissed.
9.In fine, the order passed by the Workmen Compensation Commissioner awarding of compensation of a Rs.1,74,703/- to the applicants is confirmed and the appeal is dismissed with cost.
25.03.2008
Index : Yes
Internet: Yes
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To
The Commissioner for Workmen’s Compensation
and Deputy Commissioner of Labour [Incharge],
Salem-7.
V.PERIYA KARUPPIAH, J.
ap
Judgment in
C.M.A.No.362/2002
25.03.2008