BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/06/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.No.11 of 2004 Natarajan .. Appellant/Respondent Vs Kaliaperumal .. Respondent/Claimant Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, 1923, against the award dated 30.04.2004 passed in W.C.No.89 of 2003 by the Deputy Commissioner of Labour, Trichy. !For Appellant ... Mrs.AL.Gandhimathi ^For Respondents ... Mr.G.Arokiasamy :JUDGMENT
Challenge in this Civil Miscellaneous Appeal is against the order dated
30.04.2004 in W.C.No.89 of 2003 passed by the Deputy Commissioner of Labour,
Trichy/Tribunal directing the appellant/respondent to pay a sum of Rs.77,351/-
(Rupees Seventy Seven Thousand Three Hundred and Fifty One only) to the
respondent/claimant together with the interest at 12% per annum from the date of
accident till date of payment.
2. The respondent/claimant has filed the claim petition before the Deputy
Commissioner of Labour, Trichy/Tribunal claiming a compensation of Rs.5,00,000/-
(Rupees Five Lakhs only) as against the appellant/respondent.
3. The facts of the claim in nutshell are as follows:
On 21.02.2002 at about 11.30 a.m, when the respondent/claimant was working
as machine driver in Malathi Saw Mill near Santaipet, West 4th Street,
Pudukkottai, owned by the appellant/respondent, the wood he was cutting in the
machine got in suddenly and dragged his right hand into the machine and caused
grievous hurt, as a result of which his right hand, particularly the middle
three fingers were cut and the bones were fractured. S.Kumar, S/o.K.Solai,
residing at T.S.No.2383, Mappilaiyarkulam, Pudukkottai and one Chinnadurai,
S/o.Karuppiah, residing at Attangudi Post, Pudukkottai Taluk and District, have
personally known about the occurrence. Kumar who owns a cart (driven by
manpower) used to bring in teak wood from the appellant/respondent’s saw mill
for hire, was present in the said saw mill and witnessed the occurrence.
Chinnadurai also witnessed the accident since he passed by the said saw mill at
the time of the occurrence. The appellant/respondent’s family members also gave
aid to him. He was admitted in the Pudukkottai Government Hospital by the
appellant/respondent and his son Raju and later, he was transferred from
Pudukkottai Government Hospital and got admitted into S.R.V.Hospital,
Pudukkottai and took treatment as inpatient from 21.02.2002 to 25.02.2002 and
thereafter, was taking treatment as outpatient continuously. The lawyer’s
notice dated 12.08.2002 was issued to the appellant/respondent calling upon him
to pay the compensation. However, the appellant/respondent stated in the reply
that there was no relationship as employer and employee between him and the
claimant and that the claimant did not receive Rs.4,000/- p.m., as his monthly
salary, etc. Hence, the compensation of Rs.5,00,000/- (Rupees Five Lakhs only)
was claimed directing the appellant/respondent to pay the same to the claimant.
4. The appellant/respondent took a stand in the counter that the
respondent/claimant at no point of time has worked in his saw mill and that his
saw mill has been looked after by him and his son directly and that in his mill,
the claimant or no one has rendered service and that he does not know about the
details of the alleged accident, injuries sustained and the medical treatment
and that since there is no relationship of workman and employer between the
parties, the claim petition for compensation is not maintainable and that the
appellant/respondent is not liable to pay the compensation legally to the
respondent/claimant and prays for dismissal of the petition with costs.
5. Aggrieved by the order passed by the Deputy Commissioner of Labour,
Trichy/Tribunal, in W.C.No.89 of 2002 dated 30.04.2004, the appellant/respondent
has projected this Civil Miscellaneous Appeal as an appellant before this Court.
6. On the side of the respondent/claimant, before the Deputy Commissioner
of Labour, Trichy/Tribunal, witnesses P.W.1 to P.W.3 were examined and Exs.P.1
to P.8 were marked and on the side of the appellant/respondent, witness R.W.1
was examined and Ex.R.1 was marked.
7. The following substantial questions of law were framed at the time of
admission of this Civil Miscellaneous Appeal:
(1) Whether the Court below is correct in finding that there is a
relationship of employer and employee between the parties?
(2) Whether the Court below is correct in fixing the salary at Rs.2,000/-
without any documentary evidence?
8. This Court has heard the learned Counsels appearing for the parties and
noticed their contentions.
9. The learned Counsel for the appellant/ respondent submits that the
Deputy Commissioner of Labour/Tribunal should have seen that the
appellant/respondent has proved his case to the effect that there was no
employer and employee relationship between the parties at any point of time and
that the Deputy Commissioner of Labour/Tribunal has not taken into consideration
that the appellant himself along with his sons managed the saw mill throughout
and no private person was employed for any other purpose, which was admitted by
P.W.2 in his evidence and should have rejected the case of the second
respondent/claimant and further that the Deputy Commissioner of Labour/Tribunal
should have seen that on the date of alleged incident, the saw mill was closed
due to the death of the father of the appellant, which is proved by the death
certificate produced and hence, the claim has no basis. It is further plea of
the appellant/respondent that the Deputy Commissioner of Labour/Tribunal erred
in determining the salary of the respondent/claimant at Rs.2,000/- p.m, which is
groundless and arbitrary and in any event, the order of the Deputy Commissioner
of Labour, Trichy/Tribunal is illegal and therefore, prays for allowing the
appeal in the interest of justice.
10. Finding on the substantial question of law No.(1):-
The pith and substance of the appellant/respondent’s case is that there is
no relationship of employer and employee between the parties at any point of
time.
11. P.W.1/the claimant in his evidence has stated that he was employed as
machine driver for two years in the appellant/respondent’s Malathi Saw Mill
situated at West 4th Street, Pudukkottai, on a monthly salary of Rs.4,000/- in
all and on 21.02.2002 at about 11.30 a.m., he was working in the
appellant/respondent’s saw mill and at that time, while cutting the wood, his
right hand got dragged into the machine and consequently the middle three
fingers’ bones in his right hand were fractured and sustained injuries in other
fingers and firstly, he was admitted into the Pudukkottai Government Hospital by
the appellant/respondent’s son Raju and S.Kumar and after the first aid, they
brought him back and since the appellant/respondent’s son is known to him and
asked him not to file a police case, the police was not informed and hence F.I.R
was not lodged and thereafter, in S.R.V.Hospital, he received treatment as
inpatient for five days and thereafter, he took outside treatment. It is
further evidence of P.W.1 that Kumar and Chinnadurai have witnessed the accident
and after the accident, the appellant/respondent and his son have given the
medical assistance and they know about the accident and that after the accident,
he is not able to do any work.
12. P.W.2, Chinnadurai in his evidence has deposed that the
respondent/claimant while working in the appellant/respondent’s saw mill, his
right hand entangled in the machine and at that time, he was proceeding in that
way and on hearing the noise, he went inside and saw the claimant’s damaged
fingers and he along with Kumar took the claimant to Pudukkottai Government
Hospital and that the appellant/respondent had known about the occurrence and he
came and saw the claimant and on that date, the appellant/respondent’s son was
also there.
13. It is the categorical evidence of P.W.2 that the accident occurred on
21.02.2002 around 11.00 a.m. Further, it is the clear cut evidence of P.W.2 (in
his cross-examination) that the accident took place in the saw mill of the
appellant/respondent on 21.02.2002 and while admitting the claimant in
Pudukkottai Government Hospital, the Hospital authorities asked as to how the
accident took place and noted the same.
14. R.W.1, the appellant/respondent in his evidence has stated that the
respondent/claimant has not worked in his saw mill and that there are two
machines and one small machine, and big machine is used to saw the wood and the
small machines are used for trison and that he along with his sons are operating
the same and that on 17.02.2002 at about 10.00 p.m., in the night, his father
has expired and that on coming to know of the same on 18.02.2002 early morning,
he has gone for performing the funeral rites and from 18.02.2002 to 27.02.2002
morning, he has closed his saw mill and opened it on 27.02.2002 at 09.00 a.m and
during the said period, he along with his family members were in Rakkappanpatti
and therefore, there is no possibility for happening of the accident in his saw
mill and that his father’s death certificate is Ex.R.1
15. It is apt to point out that in the decision Smt.Mangala Ben v. Dilip
Motwani and another (1998 (3) L.L.N 835), at page 837, it is observed as
follows:
“In our opinion, the finding of the Commissioner on the basis of the above
that it is not proved that the deceased was in the employment of the respondent
owner of the car is perverse. The learned Commissioner further held that the
claimant did not produce any evidence to prove that the deceased was employed
for the purposes of respondent Dilip Motwani’s trade or business. He observed
that in absence of such evidence, the deceased cannot be held to be a workman.
In our opinion, the learned Commissioner committed grave error of law in holding
that the burden lay on the claimant to prove that the deceased was employed for
the purposes of respondent’s trade or business. It is settled that the onus is
upon the employer to prove the conditions necessary for excluding a person from
the category of workman. From the definition of “workman” given in S.2(1)(n) of
the Act, it is clear that for not treating a person as workman, two conditions
are required to be proved, namely that his employment for the purpose of
employer’s trade or business and the onus is on the employer to prove these
conditions. The learned Tribunal wrongly held that the onus lay on the claimant
to prove that Hansmukh Manilal was employed for the purpose of his employer
Motwani’s trade or business, it resulted in failure of justice. The finding of
the learned Commissioner is vitiated by error of law. Under these
circumstances, it is clear that substantial question of law is involved. From
the evidence produced by the claimant it has been proved that Hansmukh Manilal
was in the employment of car owner respondent Motwani and he died during the
course of his employment. Therefore, the claimant is entitled for
compensation.” (para 5)
16. Further, it is the settled principle in law that once it is
established that services of an individual have been engaged on the basis of
payment of the employer, then the burden that he did not satisfy the conditions
of a workman will squarely lie on the employer, in the considered opinion of
this Court. As a matter of fact, when the employer has denied that the workman
was employed by him at the time of occurrence/accident, then the early burden is
on the individual workman to prove that he met with accident on 21.02.2002 which
arose out of and in the course of his employment under the appellant/respondent.
17. On a perusal of Ex.A.1, discharge card, it is evident that the
respondent/claimant has sustained injuries in his fingers in the right hand
while working in saw mill on 21.02.2002 at 11.30 a.m., and that he has
complained of pain etc. In Ex.A.6, lawyer’s notice dated 12.08.2002 issued by
the respondent/claimant addressed to the appellant/respondent, the manner and
happening of the occurrence and the injuries sustained on 21.02.2002 at 11.30
a.m., have been described in a detailed manner. However, in the reply notice,
Ex.A.7, dated 20.08.2002, issued by the appellant/respondent’s Counsel addressed
to the respondent/claimant’s Counsel, the manner and happening of accident have
been denied, besides denying the existence of relationship of employer and
employee between the parties at any point of time.
18. At this stage, it is relevant to point out that P.W.3, Dr.Devakumar,
in his evidence has stated that he examined the respondent/claimant on
07.01.2004 and issued Ex.P.8, disability certificate assessing the disability at
38% and that on examination, he found that the right hand bones of the claimant
were in ugly manner and that the claimant could not lift heavy objects and he
could not do hard jobs.
19. As far as the present case is concerned, from the unassailable
evidence adduced by P.W.1/claimant and from the unimpeachable evidence of P.W.2,
Chinnadurai in regard to the manner and happening of the accident on 21.02.2002,
amply strengthened by the documentary evidence, Ex.A.1, discharge card, and on
surrounding facts and circumstances of the case which float on the surface, this
Court comes to the conclusion that it has been proved to the satisfaction of
this Court that the respondent/claimant was in the employment of the
appellant/respondent and that the accident took place during the course of his
employment under the appellant/respondent and that there was a relationship of
employer and employee between the parties and in that view of the matter, the
respondent/claimant is entitled for compensation and the substantial question of
law No.(1) is answered accordingly.
20. Finding on the substantial question of law No.(2):-
According to the learned Counsel for the appellant/respondent, the Deputy
Commissioner of Labour, Trichy/Tribunal has erred in determining the maximum
salary of Rs.2,000/- p.m., and the same is unwarranted in the facts and
circumstances of the case. Though the respondent/claimant has stated in his
evidence as P.W.1 that his salary in all is Rs.4,000/- p.m., there is no
satisfactory proof in this regard, in the considered opinion of this Court.
However, the Deputy Commissioner of Labour, Trichy/Tribunal has fixed the salary
of the respondent/claimant as Rs.2,000/- p.m., which in the considered opinion
of this Court is not excessive or exorbitant. Even in the absence of
documentary evidence in regard to the proof of salary, the Deputy Commissioner
of Labour, Trichy/Tribunal is empowered to determine the salary at Rs.2,000/-
p.m, on a modest assessment and on that basis, the compensation of Rs.77,351/-
calculated, cannot be found fault with, in the considered opinion of this Court
and the substantial question of law No.(2) is so answered accordingly.
21. In view of the foregoing discussions and on all over assessment of the
facts and circumstances of the case, this Civil Miscellaneous Appeal fails and
the same is dismissed in furtherance of substantial cause of justice.
Considering the facts and circumstances of the case, the respective parties are
directed to bear their own costs in this appeal.
rsb
To
The Deputy Commissioner of Labour,
Trichy.