{"id":210821,"date":"2008-06-13T00:00:00","date_gmt":"2008-06-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/natarajan-vs-kaliaperumal-on-13-june-2008"},"modified":"2015-11-30T18:29:03","modified_gmt":"2015-11-30T12:59:03","slug":"natarajan-vs-kaliaperumal-on-13-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/natarajan-vs-kaliaperumal-on-13-june-2008","title":{"rendered":"Natarajan vs Kaliaperumal on 13 June, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Natarajan vs Kaliaperumal on 13 June, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 13\/06\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.VENUGOPAL\n\nC.M.A.No.11 of 2004\n\nNatarajan\t\t\t.. Appellant\/Respondent\n\nVs\n\nKaliaperumal\t\t     \t.. Respondent\/Claimant\n\nPrayer\n\nAppeal filed under Section 30 of the Workmen's Compensation Act, 1923,\nagainst the award dated 30.04.2004 passed in W.C.No.89 of 2003 by the Deputy\nCommissioner of Labour, Trichy.\n\n!For Appellant\t ... Mrs.AL.Gandhimathi\n\n^For Respondents ... Mr.G.Arokiasamy\n\n:JUDGMENT\n<\/pre>\n
\tChallenge in this Civil Miscellaneous Appeal is against the order dated
\n30.04.2004 in W.C.No.89 of 2003 passed by the Deputy Commissioner of Labour,
\nTrichy\/Tribunal directing the appellant\/respondent to pay a sum of Rs.77,351\/-
\n(Rupees Seventy Seven Thousand Three Hundred and Fifty One only) to the
\nrespondent\/claimant together with the interest at 12% per annum from the date of
\naccident till date of payment.\n<\/p>\n
\t2. The respondent\/claimant has filed the claim petition before the Deputy
\nCommissioner of Labour, Trichy\/Tribunal claiming a compensation of Rs.5,00,000\/-
\n(Rupees Five Lakhs only) as against the appellant\/respondent.\n<\/p>\n
\t3. The facts of the claim in nutshell are as follows:\n<\/p>\n
\tOn 21.02.2002 at about 11.30 a.m, when the respondent\/claimant was working
\nas machine driver in Malathi Saw Mill near Santaipet, West 4th Street,
\nPudukkottai, owned by the appellant\/respondent, the wood he was cutting in the
\nmachine got in suddenly and dragged his right hand into the machine and caused
\ngrievous hurt, as a result of which his right hand, particularly the middle
\nthree fingers were cut and the bones were fractured.  S.Kumar, S\/o.K.Solai,
\nresiding at T.S.No.2383, Mappilaiyarkulam, Pudukkottai and one Chinnadurai,
\nS\/o.Karuppiah, residing at Attangudi Post, Pudukkottai Taluk and District, have
\npersonally known about the occurrence.    Kumar who owns a cart (driven by
\nmanpower) used to bring in teak wood from the appellant\/respondent’s saw mill
\nfor hire, was present in the said saw mill and witnessed the occurrence.
\nChinnadurai also witnessed the accident since he passed by the said saw mill at
\nthe time of the occurrence.  The appellant\/respondent’s family members also gave
\naid to him.  He was admitted in the Pudukkottai Government Hospital by the
\nappellant\/respondent and his son Raju and later, he was transferred from
\nPudukkottai Government Hospital and got admitted into S.R.V.Hospital,
\nPudukkottai and took treatment as inpatient from 21.02.2002 to 25.02.2002 and
\nthereafter, was taking treatment as outpatient continuously.  The lawyer’s
\nnotice dated 12.08.2002 was issued to the appellant\/respondent calling upon him
\nto pay the compensation.  However, the appellant\/respondent stated in the reply
\nthat there was no relationship as employer and employee between him and the
\nclaimant and that the claimant did not receive Rs.4,000\/- p.m., as his monthly
\nsalary, etc.  Hence, the compensation of Rs.5,00,000\/- (Rupees Five Lakhs only)
\nwas claimed directing the appellant\/respondent to pay the same to the claimant.\n<\/p>\n
\t4. The appellant\/respondent took a stand in the counter that the
\nrespondent\/claimant at no point of time has worked in his saw mill and that his
\nsaw mill has been looked after by him and his son directly and that in his mill,
\nthe claimant or no one has rendered service and that he does not know about the
\ndetails of the alleged accident, injuries sustained and the medical treatment
\nand that since there is no relationship of workman and employer between the
\nparties, the claim petition for compensation is not maintainable and that the
\nappellant\/respondent is not liable to pay the compensation legally to the
\nrespondent\/claimant and prays for dismissal of the petition with costs.\n<\/p>\n
\t5. Aggrieved by the order passed by the Deputy Commissioner of Labour,
\nTrichy\/Tribunal, in W.C.No.89 of 2002 dated 30.04.2004, the appellant\/respondent
\nhas projected this Civil Miscellaneous Appeal as an appellant before this Court.\n<\/p>\n
\t6. On the side of the respondent\/claimant, before the Deputy Commissioner
\nof Labour, Trichy\/Tribunal, witnesses P.W.1 to P.W.3 were examined and Exs.P.1
\nto P.8 were marked and on the side of the appellant\/respondent, witness R.W.1
\nwas examined and Ex.R.1 was marked.\n<\/p>\n
\t7. The following substantial questions of law were framed at the time of
\nadmission of this Civil Miscellaneous Appeal:\n<\/p>\n
\t(1) Whether the Court below is correct in finding that there is a
\nrelationship of employer and employee between the parties?\n<\/p>\n
\t(2) Whether the Court below is correct in fixing the salary at Rs.2,000\/-
\nwithout any documentary evidence?\n<\/p>\n
\t8. This Court has heard the learned Counsels appearing for the parties and
\nnoticed their contentions.\n<\/p>\n
\t9. The learned Counsel for the appellant\/ respondent submits that the
\nDeputy Commissioner of Labour\/Tribunal should have seen that the
\nappellant\/respondent has proved his case to the effect that there was no
\nemployer and employee relationship between the parties at any point of time and
\nthat the Deputy Commissioner of Labour\/Tribunal has not taken into consideration
\nthat the appellant himself along with his sons managed the saw mill throughout
\nand no private person was employed for any other purpose, which was admitted by
\nP.W.2 in his evidence and should have rejected the case of the second
\nrespondent\/claimant and further that the Deputy Commissioner of Labour\/Tribunal
\nshould have seen that on the date of alleged incident, the saw mill was closed
\ndue to the death of the father of the appellant, which is proved by the death
\ncertificate produced and hence, the claim has no basis.  It is further plea of
\nthe appellant\/respondent that the Deputy Commissioner of Labour\/Tribunal erred
\nin determining the salary of the respondent\/claimant at Rs.2,000\/- p.m, which is
\ngroundless and arbitrary and in any event, the order of the Deputy Commissioner
\nof Labour, Trichy\/Tribunal is illegal and therefore, prays for allowing the
\nappeal in the interest of justice.\n<\/p>\n
\t10. Finding on the substantial question of law No.(1):-\n<\/p>\n
\tThe pith and substance of the appellant\/respondent’s case is that there is
\nno relationship of employer and employee between the parties at any point of
\ntime.\n<\/p>\n
\t11. P.W.1\/the claimant in his evidence has stated that he was employed as
\nmachine driver for two years in the appellant\/respondent’s Malathi Saw Mill
\nsituated at West 4th Street, Pudukkottai, on a monthly salary of Rs.4,000\/- in
\nall and on 21.02.2002 at about 11.30 a.m., he was working in the
\nappellant\/respondent’s saw mill and at that time, while cutting the wood, his
\nright hand got dragged into the machine and consequently the middle three
\nfingers’ bones in his right hand were fractured and sustained injuries in other
\nfingers and firstly, he was admitted into the Pudukkottai Government Hospital by
\nthe appellant\/respondent’s son Raju and S.Kumar and after the first aid, they
\nbrought him back and since the appellant\/respondent’s son is known to him and
\nasked him not to file a police case, the police was not informed and hence F.I.R
\nwas not lodged and thereafter, in S.R.V.Hospital, he received treatment as
\ninpatient for five days and thereafter, he took outside treatment.  It is
\nfurther evidence of P.W.1 that Kumar and Chinnadurai have witnessed the accident
\nand after the accident, the appellant\/respondent and his son have given the
\nmedical assistance and they know about the accident and that after the accident,
\nhe is not able to do any work.\n<\/p>\n
\t12. P.W.2, Chinnadurai in his evidence has deposed that the
\nrespondent\/claimant while working in the appellant\/respondent’s saw mill, his
\nright hand entangled in the machine and at that time, he was proceeding in that
\nway and on hearing the noise, he went inside and saw the claimant’s damaged
\nfingers and he along with Kumar took the claimant to Pudukkottai Government
\nHospital and that the appellant\/respondent had known about the occurrence and he
\ncame and saw the claimant and on that date, the appellant\/respondent’s son was
\nalso there.\n<\/p>\n
\t13. It is the categorical evidence of P.W.2 that the accident occurred on
\n21.02.2002 around 11.00 a.m.  Further, it is the clear cut evidence of P.W.2 (in
\nhis cross-examination) that the accident took place in the saw mill of the
\nappellant\/respondent on 21.02.2002 and while admitting the claimant in
\nPudukkottai Government Hospital, the Hospital authorities asked as to how the
\naccident took place and noted the same.\n<\/p>\n
\t14. R.W.1, the appellant\/respondent in his evidence has stated that the
\nrespondent\/claimant has not worked in his saw mill and that there are two
\nmachines and one small machine, and big machine is used to saw the wood and the
\nsmall machines are used for trison and that he along with his sons are operating
\nthe same and that on 17.02.2002 at about 10.00 p.m., in the night, his father
\nhas expired and that on coming to know of the same on 18.02.2002 early morning,
\nhe has gone for performing the funeral rites and from 18.02.2002 to 27.02.2002
\nmorning, he has closed his saw mill and opened it on 27.02.2002 at 09.00 a.m and
\nduring the said period, he along with his family members were in Rakkappanpatti
\nand therefore, there is no possibility for happening of the accident in his saw
\nmill and that his father’s death certificate is Ex.R.1<\/p>\n
\t15. It is apt to point out that in the decision Smt.Mangala Ben v. Dilip
\nMotwani and another (1998 (3) L.L.N 835), at page 837, it is observed as
\nfollows:\n<\/p>\n
\t“In our opinion, the finding of the Commissioner on the basis of the above
\nthat it is not proved that the deceased was in the employment of the respondent
\nowner of the car is perverse.  The learned Commissioner further held that the
\nclaimant did not produce any evidence to prove that the deceased was employed
\nfor the purposes of respondent Dilip Motwani’s trade or business.  He observed
\nthat in absence of such evidence, the deceased cannot be held to be a workman.
\nIn our opinion, the learned Commissioner committed grave error of law in holding
\nthat the burden lay on the claimant to prove that the deceased was employed for
\nthe purposes of respondent’s trade or business.  It is settled that the onus is
\nupon the employer to prove the conditions necessary for excluding a person from
\nthe category of workman.  From the definition of “workman” given in S.2(1)(n) of
\nthe Act, it is clear that for not treating a person as workman, two conditions
\nare required to be proved, namely that his employment for the purpose of
\nemployer’s trade or business and the onus is on the employer to prove these
\nconditions.  The learned Tribunal wrongly held that the onus lay on the claimant
\nto prove that Hansmukh Manilal was employed for the purpose of his employer
\nMotwani’s trade or business, it resulted in failure of justice.  The finding of
\nthe learned Commissioner is vitiated by error of law.  Under these
\ncircumstances, it is clear that substantial question of law is involved.  From
\nthe evidence produced by the claimant it has been proved that Hansmukh Manilal
\nwas in the employment of car owner respondent Motwani and he died during the
\ncourse of his employment.  Therefore, the claimant is entitled for
\ncompensation.” (para 5)<\/p>\n
\t16. Further, it is the settled principle in law that once it is
\nestablished that services of an individual have been engaged on the basis of
\npayment of the employer, then the burden that he did not satisfy the conditions
\nof a workman will squarely lie on the employer, in the considered opinion of
\nthis Court.  As a matter of fact, when the employer has denied that the workman
\nwas employed by him at the time of occurrence\/accident, then the early burden is
\non the individual workman to prove that he met with accident on 21.02.2002 which
\narose out of and in the course of his employment under the appellant\/respondent.\n<\/p>\n
\t17. On a perusal of Ex.A.1, discharge card, it is evident that the
\nrespondent\/claimant has sustained injuries in his fingers in the right hand
\nwhile working in saw mill on 21.02.2002 at 11.30 a.m., and that he has
\ncomplained of pain etc.  In Ex.A.6, lawyer’s notice dated 12.08.2002 issued by
\nthe respondent\/claimant addressed to the appellant\/respondent, the manner and
\nhappening of the occurrence and the injuries sustained on 21.02.2002 at 11.30
\na.m., have been described in a detailed manner.  However, in the reply notice,
\nEx.A.7, dated 20.08.2002, issued by the appellant\/respondent’s Counsel addressed
\nto the respondent\/claimant’s Counsel, the manner and happening of accident have
\nbeen denied, besides denying the existence of relationship of employer and
\nemployee between the parties at any point of time.\n<\/p>\n
\t18. At this stage, it is relevant to point out that P.W.3, Dr.Devakumar,
\nin his evidence has stated that he examined the respondent\/claimant on
\n07.01.2004 and issued Ex.P.8, disability certificate assessing the disability at
\n38% and that on examination, he found that the right hand bones of the claimant
\nwere in ugly manner and that the claimant could not lift heavy objects and he
\ncould not do hard jobs.\n<\/p>\n
\t19. As far as the present case is concerned, from the unassailable
\nevidence adduced by P.W.1\/claimant and from the unimpeachable evidence of P.W.2,
\nChinnadurai in regard to the manner and happening of the accident on 21.02.2002,
\namply strengthened by the documentary evidence, Ex.A.1, discharge card, and on
\nsurrounding facts and circumstances of the case which float on the surface, this
\nCourt comes to the conclusion that it has been proved to the satisfaction of
\nthis Court that the respondent\/claimant was in the employment of the
\nappellant\/respondent and that the accident took place during the course of his
\nemployment under the appellant\/respondent and that there was a relationship of
\nemployer and employee between the parties and in that view of the matter, the
\nrespondent\/claimant is entitled for compensation and the substantial question of
\nlaw No.(1) is answered accordingly.\n<\/p>\n
\t20. Finding on the substantial question of law No.(2):-\n<\/p>\n
\tAccording to the learned Counsel for the appellant\/respondent, the Deputy
\nCommissioner of Labour, Trichy\/Tribunal has erred in determining the maximum
\nsalary of Rs.2,000\/- p.m., and the same is unwarranted in the facts and
\ncircumstances of the case.  Though the respondent\/claimant has stated in his
\nevidence as P.W.1 that his salary in all is Rs.4,000\/- p.m., there is no
\nsatisfactory proof in this regard, in the considered opinion of this Court.
\nHowever, the Deputy Commissioner of Labour, Trichy\/Tribunal has fixed the salary
\nof the respondent\/claimant as Rs.2,000\/- p.m., which in the considered opinion
\nof this Court is not excessive or exorbitant.   Even in the absence of
\ndocumentary evidence in regard to the proof of salary, the Deputy Commissioner
\nof Labour, Trichy\/Tribunal is empowered to determine the salary at Rs.2,000\/-
\np.m, on a modest assessment and on that basis, the compensation of Rs.77,351\/-
\ncalculated, cannot be found fault with, in the considered opinion of this Court
\nand the substantial question of law No.(2) is so answered accordingly.\n<\/p>\n
\t21. In view of the foregoing discussions and on all over assessment of the
\nfacts and circumstances of the case, this Civil Miscellaneous Appeal fails and
\nthe same is dismissed in furtherance of substantial cause of justice.
\nConsidering the facts and circumstances of the case, the respective parties are
\ndirected to bear their own costs in this appeal.\n<\/p>\n
rsb<\/p>\n
To
\nThe Deputy Commissioner of Labour,
\nTrichy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Natarajan vs Kaliaperumal on 13 June, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-210821","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nNatarajan vs Kaliaperumal on 13 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/natarajan-vs-kaliaperumal-on-13-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Natarajan vs Kaliaperumal on 13 June, 2008 - 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