BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.518 of 2003 The Superintending Engineer, Madurai Electricity Distribution Circle, Tamil Nadu Electricity Board, K.Pudur, Madurai - 7. .. Appellant Vs Pandiammal .. Respondent Prayer Appeal filed under Section 30 of the Workmen Compensation Act, 1923 against the order dated 20.01.2003 made in W.C.No.316 of 2001, on the file of the learned Deputy Commissioner of Labour for Workmen Compensation, Madurai. !For Appellant ... Mr.M.Suresh Kumar ^For Respondent ... Mr.R.Thangasamy :JUDGMENT
Challenge is made in this appeal, to the award of Rs.3,05,922/-, dated
20.01.2003 and made in W.C.No.316 of 2001, on the file of the learned Deputy
Commissioner of Labour for Workmen Compensation, Madurai, by the respondent in
the claim petition.
2.The facts which are absolutely necessary for the disposal of this appeal
may be summarized as under:
The deceased Rajasekar is the son of the respondent herein. He is a
Diplomo Holder in Electrical and Electronics Engineering and in such capacity,
he had been working under the appellant/Tamil Nadu Electricity Board as a
contract labour at the rate of Rs.100/- per day towards daily wages. That on
14.06.2001, at about 02.30 p.m., while he was working for the installation of a
new electric pole in between pole Nos.VN29 and VN30 in surveyor colony-
Mattuthavani road, got electrocuted and died instantaneously during the course
of his employment under Madurai Electricity Distribution Circle, Tamil Nadu
Electricity Board, Madurai. At the time of his death, he was aged about 24 years
and was getting a sum of Rs.3,000/- per month and hence, the respondent being
his mother had filed a claim petition before the Deputy Commissioner of Labour
for Workmen Compensation claiming a sum of Rs.3,27,705/- towards compensation.
The appellant/Tamil Nadu Electricity Board being the respondent in the claim
petition had contested the claim on various grounds.
3.On appreciation of the evidence and considering the other materials
available on record, the learned Deputy Commissioner of Labour for Workmen
Compensation, Madurai had proceeded to pass an award of Rs.3,05,922/- directing
the appellant/Tamil Nadu Electricity Board to pay the award amount with interest
at the rate of 12% p.a from the date of the accident. Hence this appeal.
4.Heard both sides.
5.The learned counsel appearing for the appellant while advancing his
argument has submitted that the deceased cannot be characterised and brought
within the ambit to Section 2(n) of the Workmen’s Compensation Act, 1923 to
define him as a workman. Secondly, he has also submitted that the appellant
board being the principal employer is not liable to pay any compensation, under
the provision of the Act to the respondent. Thirdly, he has also submitted that
the finding of the learned Deputy Commissioner of Labour for Workmen
Compensation, Madurai that the death arose out of and during the course of
employment of the appellant board is not sustainable under the Workmen’s
Compensation Act, 1923.
6.During the course of his argument he has also drawn the attention of
this Court to the substantial questions of law which are formulated on the
grounds of appeal. It is pertinent to note here that the appeal has been
admitted on two substantial questions of law.
“1) Was there any contributory negligence on the part of the deceased?
2) Whether the quantum of compensation fixed on the basis of the daily
wages at Rs.80/- is sustainable both in law and on facts?”
7.The learned counsel for the appellant has argued that the deceased was
only a contract labour and hence Electricity Board is not at all liable to pay
compensation. This issue was also considered by the learned Deputy Commissioner
of Labour for Workmen Compensation, Madurai and decided in favour of the
respondent.
8.It is obvious note to here that the respondent in his counter statement
has stated that the engagement of the deceased was as a contract labour and that
his death was occurred on account of electric shock, when he was working on
14.06.2001. When there is specific admission on the part of the appellant-Board,
the issue that there was no employer and employee relationship between the
deceased and the appellant-Board will not arise.
9.It may be appropriate to refer the decision in Mahmood Vs. Balwant Singh
reported in 1979 (39) FLR 417 (A11.HC) : 1980 LIC 300, in which it is observed
that:
“Payment on daily wages is matter of convenience and mutual adjustment
between worker and employer. To cover a person under the definition of workman
his nature of employment is the decisive factor and not its duration hence a
person even though employed on daily wages for a single day is workman under the
Act.”
10.On coming to the instant case on hand, it is explicitely admitted by
the respondent that the deceased was working as a contract labour under the
appellant-Board and therefore, the deceased being the contract labour will
definitely come under the definition of Workman as defined under Section 2(n) of
the Workmen’s Compensation Act, 1923.
11.Further, it is also important to point out here that the respondent had
examined herself as P.W.1 and during the course of her examination Exs.A1 to A6
were marked. As rightly observed by the learned Deputy Commissioner of Labour
for Workmen Compensation, Madurai, Exs.A4 and A5 would go to show that the
deceased was a Diplomo Holder in Electrical and Electronics Engineering and the
Transfer Certificate under Ex.A4, reveals that his date of birth is 08.11.1975
and hence at the time of his death his age was about 25 years. On the basis of
Ex.A6, Circular of the Secretary, TNEB, the schedule of rates of wages fixed by
the PWD, has to be followed.
12.The learned Deputy Commissioner of Labour for Workmen Compensation,
Madurai has fixed the daily wage of the deceased at Rs.80/- and therefore, his
monthly income was fixed at Rs.2,400/-. Since the deceased was aged about 25
years, the age and factor was fixed at Rs.216.91 as per Schedule 4 of the
Workmen’s Compensation Act, 1923 and on that basis, the quantum was arrived at
Rs.2,60,292/- (Rs.2400X50/100 X 216.91=Rs.2,60,292/-).
13.Besides this, the learned Deputy Commissioner of Labour for Workmen
Compensation, Madurai has also determined that as per Section (4-A)(3)(a) of the
Workmen’s Compensation Act, 1923, the applicant is entitled to get interest at
12% p.a and accordingly from 14.06.2001 to 31.02.2001, the interest at the rate
of 12% p.a has been calculated at Rs.43,130/-.
14.Besides this, as per Section 4(4) of the Workmen’s Compensation Act
(Amended Act 46/2000), it has been determined that the respondent is entitled to
get Rs.2,500/- towards funeral expenses.
15.The learned Deputy Commissioner of Labour for Workmen Compensation, has
ultimately determined that the respondent being the mother of the deceased is
entitled to get a sum of Rs.3,05,922/- (Rs.2,60,292 + Rs.2,500 + Rs.43,130/-).
16.On careful analysation of the materials available on record and on
considering the award passed by the learned Deputy Commissioner of Labour for
Workmen Compensation, Madurai, this Court is of the considered opinion that the
interest calculated by the learned Deputy Commissioner of Labour for Workmen
Compensation, Madurai from 14.06.2001 ie., from the date of incident is not
correct as per Section
(4-A)(3)(a) of the Workmen’s Compensation Act, 1923 and the interest at the rate
of 12% p.a shall have to be calculated 30 days after the incident.
17.In the result, the award of the learned Deputy Commissioner of Labour
for Workmen Compensation a sum of Rs.2,60,292/- and funeral expenses at
Rs.2,500/- as per Section 4(4) of the Workmen’s Compensation Act, 1923 is
confirmed. But the interest which was calculated from the date of incident ie.,
from 14.06.2001 is set aside. The interest at the rate of 12% p.a as per the
proviso to Section (4-A)(3)(a) shall have to be calculated 30 days after the
accident.
With this observation, the Civil Miscellaneous Appeal is disposed of. No
order as to costs.
ps
To
The Deputy Commissioner of Labour,
Workmen Compensation,
Madurai.