In the High Court of Judicature at Madras
Date : 30..04..2008
Coram :
The Hon'ble Mr. Justice V. PERIYA KARUPPIAH
Civil Miscellaneous Appeal No: 461 of 2002
Management of Vickson Tools,
Kattabomman Street,
Coimbatore - 641 006. ... Appellant
-vs-
1. Palanichamy,
No: 5/2, Devandrar Street,
Uppilpipalayam West,
Coimbatore 641 015.
2. Nandivarman,
Civil Engineer,
C/o. South India Textiles
Research Association,
Avinashi Road,SITRA (P.O.)
Coimbatore. ... Respondents
.. .. ..
Civil Miscellaneous Appeal under Section 30 of the Workmen Compensation / Dy. Commissioner for Labour, Coimbatore, against the order dated 23.05.2001 made in W.C. No: 132 of 2000.
For appellant : Mr. K. Chakrapani
.. .. ..
J U D G M E N T
This appeal is directed against the order dated 23.05.2000 passed by the Deputy Commissioner for Workmen Compensation, Coimbatore, in W.C. No: 132 of 2000 filed by the employer / 1st Opposite Party. The appellant is the 1st Opposite Party who filed the appeal against the award of a sum of Rs. 44,200/- in favour of the applicant who sustained injuries and suffered disability due to an accident which occurred in the course and arising out of employment at the work spot namely in the house of the 1st opposite party, under the supervision of the 2nd opposite party. The Deputy Commissioner had appraised the evidence and after a full fledged enquiry, came to the conclusion of awarding a sum of Rs. 44,200/- in favour of the applicant against which the present appeal has been preferred by the 1st Opposite Party the employer.
2. The points for consideration in this appeal are
(1) As to whether the applicant was a workman under the 1st opposite party at the time of the alleged incident and if so, whether the 1st opposite party is liable to pay compensation to the applicant under Workmen Compensation Act ? and
(2) Whether the compensation of Rs.44,200/- as awarded by the Deputy Commissioner of Workmen Compensation, Coimbatore, is liable to be set aside or revised ?
3. For convenience sake the status of the parties as before the Workmen Compensation Court is being used in this judgment as it is. The applicant is said to have been engaged in centering work at the house of the 1st opposite party and at the time of carrying out the work, i.e. in the course of and arising out of his employment, he fell down from a height of 10 feet and sustained injuries in such an accident which occurred on 07.04.2000. He was immediately admitted in the hospital belonging to Dr.Vijayaraghavan where he was given First Aid and thereafter, he was taken to Coimbatore Medical College hospital and was admitted as an in-patient where he took treatment for his injuries. The injuries said to have been sustained by the applicant was a multiple fracture in his left hand. He has further claimed that he was affected by disability due to mal-union of the fractured bones and that he had spent much expenditure for taking treatment and, therefore, he claims a sum of Rs.1,00,000/- towards compensation.
4. The Deputy Commissioner for Workmen Compensation had considered the objection of the 1st Opposite party that the applicant was not at all a workmen under him and the objection of the 2nd opposite party that he was not at all a necessary party since he was not connected with any work of the 1st opposite party and had come to a conclusion that the applicant was a workman under the 1st opposite party and that the claimant had sustained injuries in the accident which occurred in the course and arising out of employment and a sum of Rs.44,200/- should have been paid by the 1st opposite party by holding that the applicant had sustained 20% disability due to the injuries.
5. The learned counsel for the appellant / First Opposite Party would submit in his argument that the Deputy Commissioner for Workmen Compensation did not consider the entire evidence produced by the 1st opposite party and the objections raised by them but, had come to a wrong conclusion of awarding the compensation to the applicant. He would further submit in his argument that the pay role of the 1st opposite party namely that of the factory, was produced by the 1st opposite party which was not considered by the Deputy Commissioner and if so considered it would disclose that the applicant is not a workman working under him. More over, he would submit that the applicant himself has stated that he was working in the portico centering at the house of the 1st opposite party and, therefore, he is not connected with the factory of the 1st opposite party and thus he is not liable to pay compensation on that score also. The calculation of compensation by the learned Deputy Commissioner was also without any basis; On an arbitrary manner he had fixed the wages of the applicant and he had also notionally fixed the disability without any help of the evidence and therefore, the quantum of compensation fixed is also not sustainable in law. He would further submit that even presuming that the accident had so happened on 07.04.2000, on that date the definition of the word “Workmen” under Section 2 (n) of the Workmen Compensation Act had no application and the persons who are in connection with the trade or business of the employer alone could claim the compensation and no other person who are in the domestic work are entitled for any compensation as the said amendment was effective from 09.08.2000 only. He would further argue for setting aside the award and thereby the appeal be allowed.
6. The learned counsel for the applicant / 1st respondent would submit in his argument that the applicant was actually engaged in the centering work of the portico in the house of the 1st opposite party and at that time, the wooden support for the centering had collapsed and, therefore, he fell down from a height of 10 feet and sustained multiple fractures on his left hand and he was taken by the 1st opposite party and 2nd opposite party to Dr. Vijayaraghavan’s clinic and, thereafter, to the Government Medical College hospital. The applicant had taken treatment for more than 15 days and, therefore, it cannot be said that the applicant was not a workman under the 1st opposite party. He would further submit in his argument that even though the claimant was working at the house of the 1st opposite party, he would also come under the definition of “Workmen” and, therefore, he is entitled to get compensation for the damages sustained by him in the accident. He would further submit in his argument that the learned Deputy Commissioner had examined the applicant that the documents given by the Doctor and had come to the conclusion of awarding 20% disability and calculated the compensation in accordance with Section 4 of the Act and, therefore, the award passed by the Deputy Commissioner is binding on the 1st opposite party and there is no necessity for revising the order passed by the Deputy Commissioner and the appeal may be dismissed.
7. Considering the arguments advanced on either side and the evidence produced before the Deputy Commissioner of Workmen Consideration, Coimbatore, we could see that the applicant Palanisamy was alleged to have sustained injury due to the fall from the height of 10 ft. on 07.04.2000 and he was admitted in the Government Medical College Hospital on 08.04.2000 and after treatment, he was discharged on 12.05.2000. This can be evidenced from the copy of discharge summary produced by the appellant at page No: 16 of the typed set. The said document was produced along with the medical certificate as Ex.P.1. From the medical certificate, we could see that the applicant Palanisamy had sustained 30% disability due to the injuries sustained by him in the mildshock of the left radius bone in his left hand. Therefore, it is true that the applicant Palanisamy had sustained injuries in an accident which occurred on 07.04.2000 and was taking treatment for the said injuries sustained by him. He was examined as P.W.1. In his evidence he had categorically stated that when he was binding the centering iron rods at the house of the 1st opposite party, he had fallen down from the wooden support and sustained fractures in his left hand and he was taking treatment for 35 days and steel plate has been fixed at the left hand and he could not do his work as before. In the cross examination, nothing was elicited that he was not working at the house of the 1st opposite party. The evidence of the partner of the 1st opposite party had denied in his evidence that there was no construction work at the place of the company and he did not know about the applicant. He has also denied in his cross examination that there was no work carried out at his house. When such a rigid stand is taken by the 1st opposite party, we have to see as to whether the 1st opposite party is liable to pay the compensation to applicant ?
8. The pay role for the company of the 1st opposite party was produced only before this Court and the same was not shown before the Deputy Commissioner for the Workmen Compensation. It is not the case of the applicant that he had been working in the factory belonging to the 1st opposite party and sustained injuries in the course of his employment. The 1st opposite party did not speak in his chief examination that there was any work carried out at his house and the applicant was not engaged in Centring work on the fateful day. The documents namely the Medical Certificate and the discharge summary produced as Ex.P.1 would show that the applicant sustained injury when he fell from a height of 10 ft. It is also submitted by the learned counsel for the claimant that the belated denial of the accident and the refusal to pay compensation on the part of the 1st opposite party could be considered obviously against his stand and therefore, the conclusion arrived at by the Deputy Commissioner for Workmen Compensation cannot be held as unsustainable. According to him, this Court should also accept the evidence of P.W.1 that he had sustained the injury due to the fall from the centering at the portico at the house of the 1st opposite party.
9. Now we have to see whether the work undertaken at the house of the 1st opposite party can also be termed as work carried out by a workman under the definition of The Workmen Compensation Act. It was contended that the accident had occurred on 07.04.2000 and on the said date, the definition of Workman under Section 2 (n) reads thus,
“2 (n) “Workman” means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.”
Therefore, this definition would not include the applicant Palanichamy since he was stated to be working at the house of the 1st opposite party which is not his work place connected with the trade or business. Now, let us see whether this argument is sustainable in law or not ?
8. In a similar situation, this Court in a decision reported in 2008 (1) MLJ 944 (A.Usha Rani and another vs. P.Dharmalingam and another) this Court held that amendment to Section 2 (n) of Act 48 of 2000 would be beneficial to the workman to whom an accident had occurred even prior to the amendment. The relevant passage runs as follows :
“In the amending Act, the explanation of “workman” has been clarified by the omission of the words “workman means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of employer’s trade or business” for the purpose of including the actual workers as well as the workmen who are connected with trade or business and therefore, it is a clarificatory amendment. The clarificatory amendment of this nature will have retrospective effect and therefore, if the Principal Act was existing law when the Constitution came into force, the amending Act will also be the part of the existing law. Therefore, the amending Act 46 of 2000 was even though mentioned as came into force on 08.12.2000, it has got retrospective effect from the date of the Principal Act, viz., the Workmen Compensation Act 1923, as per the dictum laid down in the aforesaid judgment of our Supreme Court. ”
In the said judgment, we could see that the amendment to Section 2 (n) of the Workmen Compensation Act would have retrospective effect and the applicants in the later cases can also get the benefit of such amendment since the Workmen Compensation Act is a beneficial legislation for the workmen. In accordance with the said judgement, the claimant herein who was engaged in the centering work at the house of the 1st opposite party is also covered under the term ‘workman’ under Section 2 (n) of the Workman Compensation Act. Therefore, there is no difficulty to bring the applicant under the definition of workman who is entitled for compensation for the injuries sustained by him in the accident arising out of and in the course of his employment on 07.04.2000. Therefore, I have no hesitation to hold that the applicant is entitled for compensation and the decision reached by the Deputy Commissioner of Workman Compensation, that he is entitled for compensation is quite justifiable and the same is confirmed.
9. Nextly, when we go into the question of claim, the Deputy Commissioner had personally verified the entire documents produced by the claimant and had come to the conclusion of awarding such compensation. The medical evidence shows that the disability caused to the claimant due to the injuries sustained by him is 30%. However, the Deputy Commissioner had fixed it at 20% against which the applicant has not preferred any cross objection in this appeal for enhancement of compensation. Therefore, the fixation of 20% disability holds good for the purpose of calculating the compensation. The daily wages as calculated by the Deputy Commissioner was at Rs.170/-. It was not denied by the 1st opposite party in their cross examination. The age of the injured was taken as 40 as referred to in the medical certificate. Thus, the monthly wages of the claimant would be Rs.5,100/-. But, the Trial Court had reduced it to Rs.2,000/- as per Section 4 of the Workman Compensation Act. The said procedure followed by the trial Court is perfectly correct. Hence, this Court is not inclined to interfere with the said calculation of compensation. The said assessment of compensation at Rs.44,200/- which is directed to be paid by the 1st opposite party
V. PERIYA KARUPPIAH, J.
within 30 days and in default to pay interest at 12% per annum till the date of realisation of the payment, is just and reasonable compensation. Thus, it has become necessary for this Court to confirm the award passed by the Deputy Commissioner of Workmen Compensation, Coimbatore and dismiss the appeal preferred by the 1st opposite party. In fine, the appeal is dismissed. Connected miscellaneous petition is closed. No costs.
Index : Yes 30..04..2008 Website : Yes gp Pre-delivery Judgment in CMA No.461 of 2002
