Madras High Court
The Management vs S.Vallinayagam on 9 July, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/07/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A(MD).No.210 of 2004 and C.M.P.No.1536 of 2004 The Management, Indira Lodge, 942, Main Road, Kovilpatti. .. Appellant/Respondent Vs S.Vallinayagam .. Respondent/Claimant Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, against the award dated 14.05.2004 passed in W.C.No.67 of 2002 by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Tirunelveli. !For Appellant ... Mr.S.Kadarkarai ^For Respondents... Mr.B.Rajesh Saravanan :JUDGMENT
This Civil Miscellaneous Appeal is filed by the appellant/respondent as against the award dated 14.05.2004 passed in W.C.No.67 of 2002 by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Tirunelveli/Tribunal.
2. The respondent/claimant has filed a claim petition before the Commissioner/Tribunal claiming a compensation of Rs.1,22,004/- (Rupees One Lakh Twenty Two Thousand and Four only) along with interest at 12% p.a from the date of accident till date of payment and the Commissioner/Tribunal namely the Deputy Commissioner of Labour, Tirunelveli, after contest, on an appreciation of oral and documentary evidence, has passed an award on 14.05.2004 granting a sum of Rs.89,433/- (Rupees Eighty Nine Thousand Four Hundred and Thirty Three only) as compensation and further has directed the appellant/respondent to deposit the aforesaid amount within thirty days from the date of receipt of the order.
3. The short facts leading to the filing of the appeal are as below:
The respondent/claimant's deceased father was employed as a watchman by the appellant/respondent in his M/s.Indira Lodge since 01.08.1985. His fatyher was paid a sum of Rs.1,500/- p.m as monthly wages and Rs.10/- per day as daily batta. His working hours was 12 hours per day in any shift (Day shift 6 a.m to 6 p.m and Night shift 6 p.m to 6 a.m). He was not paid with any leave wages or no wages for the leave too, was paid to him.
4. Under the above circumstances, on 06.01.2002, during Day shift, at about 10.45 a.m, when his father Subramanian was engaged as a room boy in the upstairs room, he felt chest pain and he was brought to the nearby clinic with the help of the cleaning woman by name Tmt.Lilly and one Tmt.Isakki, a dobhy of the same lodge and that his father succumbed to the chest pain at about 11.30 a.m and the treatment was of no avail. His father was aged 55 years at the time of accident and altogether, he was drawing the monthly wage of Rs.1,800/- inclusive of daily batta (Rs.1,500/- p.m, as wages and Rs.10/- per day as daily batta). A legal notice dated 14.02.2002 was issued by the respondent/claimant to the appellant/respondent claiming a compensation of Rs.1,25,004/-, but the appellant/respondent sent a reply dated 21.02.2002 stating that the deceased Subramanian was not all employed by him and rejected his claim. Since the deceased was employed by the appellant/respondent and the accident arose out of and in the course of his employment under the appellant/respondent, the appellant was liable to pay the compensation of Rs.1,22,004/- with interest at 12% p.a to the respondent/claimant.
5. The appellant/respondent has filed a counter inter alia stating that in the given address, there was no lodge functioning in the name of M/s.Indira Lodge for the last ten years and that M/s.Indira Lodge was closed some ten years back and this was reported to the authorities namely, Police, Municipality6 and Labour Office and hence, the claim of the respondent/claimant was bogus and fraudulent. M/s.Indira Lodge was converted into a commercial complex and it was rented out to tenants for a monthly rent on monthly basis. The respondent/claimant has no cause of action and the amount claimed was not based on the relevant provisions of the Act and hence, the claim petition ought to be dismissed.
6. Before the Deputy Commissioner of Labour/Tribunal, on the side of the respondent/claimant, witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.6 were marked and on the side of the respondent/claimant, witnesses R.W.1 to R.W.4 were examined and Exs.R.1 and R.2 were marked.
7. The following substantial questions of law were framed by this Court at the time of admission of this Civil Miscellaneous Appeal:
"(1) Whether the Lower Authority is correct in awarding compensation to the respondent/claimant, when the respondent/claimant does not come under the purview of Section 2(d) of the Workmen's Compensation Act? (2) Whether the Lower Authority is correct in entertaining the application of the respondent/claimant, when there is no pleading or evidence to show that he is a dependant of the deceased workman?
(3) Whether the award of the Lower Authority is vitiated for not having considered the cause of the death of the workman?"
8. Heard the learned Counsel appearing for the parties and this Court noticed their rival contentions.
Finding on the substantial questions of law Nos.1 and 2:
9. According to the learned Counsel for the appellant/respondent Management, the respondent/claimant does not come under the definition 'dependant' as per Section 2(d) of the Workmen's Compensation Act and that the respondent/claimant has not pleaded in his claim petition or let in any evidence before the Tribunal to prove that he is a dependant of the deceased Subramanian and therefore, the respondent/claimant is not entitled to the relief of any compensation amount much less the compensation of Rs.1,22,004/- claimed in the claim petition together with interest at 12% p.a. from the date of accident till date of payment and prays for allowing the appeal.
10. In this connection, it is not out of place to make a mention that P.W.1/claimant, Vallinayagam, in his evidence before the Commissioner/Tribunal, has stated that he went to Bala Clinic after receiving information that his father had chest pain on 06.01.2002 at 10.45 a.m, and there, he was informed that his father died of chest pain.
11. P.W.1/claimant in his evidence has further stated that his father on the date of accident was on duty and during the course of his employment, he had chest pain and that Isakki and Lilly, (women workers) took his father Subramanian in an auto and admitted him in the said Clinic and that his father worked under the Management of Indira Complex. It is significant to state that P.W.1/claimant Vallinayagam in his cross-examination, has categorically stated that in Loyal Mill, he has done civil jobs. In the preamble portion of evidence of P.W.1/claimant, his age is mentioned as 37 years as recorded by the Commissioner/Tribunal. In Ex.P.6, Medical Certificate of Cause of Death in respect of P.W.1/claimant's father deceased Subramanian, the age is mentioned as 56 years. However, P.W.1/claimant in his evidence has stated that at the time of the death of his father, his age is 55 years.
12. At this stage, it is to be pointed out that Section 2(d) of the Workmen's Compensation Act, 1923, defines 'dependants' under three categories under its three sub-clauses. The claimants who come under sub-clause (i) derive status of dependants merely by establishing the relationship mentioned therein. In fact, they do not have to establish that they were actually dependants either wholly or in part on the earnings of a deceased workman at the time of his death.
13. The second category of dependants are mentioned in sub-clause (ii). At first, they have to prove the relationship mentioned in this sub-clause. Secondly, they have to prove that they are infirm and that thirdly, they have to establish that they were wholly dependants on the earnings of a deceased workman at the time of his death.
14. The third category of dependants are mentioned in sub-clause (iii). They have to prove the relationship mentioned in sub-clause (iii) and further that they were wholly or in part dependants on the earnings of the deceased workman at the time of his death. The dependants in part is sufficient in their case. As a matter of fact, the amendment made by the Act 30 of 1995 enlarges the scope of definition of the dependant so as to include the adopted son/daughter/child respectively.
15. It is to be borne in mind that the dependancy is to be decided in regard to the date of death of the workman. In fact, at some future date, the father may have to depend on the earnings of his son, is not a relevant criteria. While deciding the issue as to who all will constitute dependants of the deceased and how the compensation amount awarded has to be distributed, the position prevailing on the date of death of an employee and not the position prevailing on the date of inception of the enquiry is to be considered, in the considered opinion of this Court.
16. The learned Counsel for the appellant/respondent Management, relies on the decision of the Full Bench of this Court in B.M.Habeebullah Maricar v. Periaswami and others (1977 (2) MLJ 315), at special pages 323 and 324, whereunder, it is laid down as follows:
"This analysis of the provisions of section 8, especially that of sub- section (4) which enjoins refund of the compensation to the employer in case no dependants are forthcoming, leaves no room for doubt that the Act was not intended to benefit any person except the workman and his dependants. And there are good reasons for the object of the Act being so restricted. As already stated, prior to the enforcement of the Act a workman had no remedy in respect of an injury arising from an accident attributable to his employment unless he was entitled to damages in tort. It was the Act which for the first time provided a remedy for accidental injuries to a workman even though his employer could not be held responsible therefor and even though it had resulted from an accident for which perhaps the workman himself was to blame. It was in these circumstances reasonable to extend the benefit which the Act provided for the workman himself in respect of the injury to his dependants only and to no others. The expression 'dependant' is thus defined in clause (d) of sub-section (1) of Section 2 of the Act:
"'dependent' means any of the following relatives of a deceased workman, namely:-
(i) a widow, a minor legitimate son, an unmarried legitimate daughter, or a widowed mother; and
(ii) if wholly dependant on the earnings of the workman at the time of his death a son or a daughter who has attained the age of 18 years and who is infirm;
(ii) if wholly or in part dependant on the earnings of the workman at the time of his death-
(a) a widower,
(b) a parent other than a widowed mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate if married and a minor or if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law,
(f) a minor child of a pre-deceased son,
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grandparent if no parent of the workman is alive;"
A look at this definition of the term 'dependant' would show that it is not intended to benefit all the heirs of a deceased workman, but to embrace only those relations who, to some extent, depend upon him for their daily necessities, so much so that even some of his nearest and dearest ones, viz., sons who have attained majority, married daughters and an illegitimate daughter, whether married or unmarried are excluded if they were not dependant on the worker's earnings, wholly or in part. Kinship coupled with dependency, is thus made the sole criterion for a person to fall within the ambit of the definition. And if that be so, there is no reason why the benefit of the Act should go to heirs other than 'dependants' and section 9 coupled with the definition in clause (n) of sub-section (1) of Section 2 be given a restricted meaning in derogation of the language used by the legislature. To hold otherwise and to extend the benefit of the Act to the legal representatives of the deceased workman or of the dependants would be to burden the employer with liability not flowing from the subject which the Act sought to achieve and to pass the benefit provided by the Act to persons altogether outside the class contemplated by it." (para 14)
17. He also cites the decision of the Honourable Supreme Court, in Jyothi Ademma v. Plant Engineer, Nellore and another (AIR 2006 SUPREME COURT 2830), at page 2831, wherein it is inter alia observed as under:
"The expression "accident" means an untoward mishap which is not expected or designed. "Injury" means physiological injury. In Fenton v. Thorley & Co. Ltd., (1903) AC 448, it was observed that the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed. The above view of Lord Macnaghten was qualified by the speech of Lord Haldane A.C in Trim Joint District School Board of Management v. Kelly (1914) AC 676, as follows:
"I think that the context shows that in using the word 'designed' Lord Macnaghten was referring to designed by the sufferer."
In the present case it has been brought on record that the deceased was suffering from chest disease and was previously being treated for such disease. The High Court also noted that the job of the deceased was only to switch on or off and, therefore, the doctor had clearly opined that there was no scope for any stress or strain in his duties. In view of the factual findings recorded the High Court's judgment does not suffer from any infirmity."(paras 7 and 8)
18. Section 8 of the Workmen's Compensation Act, deals with the distribution and disbursement of compensation and specifically prohibits the direct payment of compensation in cases of death of a workmen and in cases, where payment is to be made to women or persons under any legal disability. In such a case, the payment ought to be made by deposit with the Commissioner. Direct payments in such cases, shall not be construed to be payment of compensation at all. Further, Section 9 of the Workmen's Compensation Act, which speaks of compensation not to be assigned, attacked or charged, gives protection to a workman who has been granted lump sum payment or half-monthly payment from being deprived of the benefit of compensation.
19. While immunity and the protection under the Section is in favour of the 'workman', the definition of the term 'workman' under Section 2(1)(n) of the Act, provides that any reference to a workman who has been injured, shall where the workman is dead, includes a reference to his dependants or any of them. As far as the present case is concerned, it is the categorical evidence of P.W.1/claimant Vallinayagam that his mother died in the year 1998 and that he has two sisters.
20. In the decision P.R.Rani v. Deputy Labour Commissioner and others (1985 ACJ 728), at page 729, it is inter alia observed as follows:
"Section 2(1)(d)(iii) of the Workmen's Compensation Act defines a 'dependant' as any relative of a deceased workman "if wholly or in part dependent on the earnings of the workman at the time of his death," and in terms of clause (d) thereof, dependents include "a minor brother or an unmarried sister or a widowed sister, if a minor". There could, therefore, be no doubt, while deciding the question as to who all would constitute dependents of the deceased and how the compensation amount awarded has to be distributed, the position as was obtaining on the date of the death of the employee is to be taken into account.
4. In this case, the admitted fact is that on the date of Shaji, the appellant as well as the 4th respondent were unmarried. That fact deserved due consideration at the hands of the Commissioner. Subsequent events and changes in position are not quite material. The Commissioner, therefore, was in error in making a distinction between the two on consideration of the position as it obtained on the date on which the enquiry was instituted under Section 8 of the Act." (paras 3 and 4)
21. Admittedly, the respondent/claimant/P.W.1's two sisters were not added as necessary parties in the claim petition W.C.No.67 of 2002 made by the respondent/claimant before the Commissioner/ Tribunal. It cannot be disputed that on the date of death of P.W.1/claimant's father Subramanian, his dependants are the respondent/claimant and his two sisters. In fact, P.W.1/claimant in his cross-examination, has not spoken anything about the age and marital status of his two sisters.
22. A perusal of the award passed by the Commissioner/Tribunal in W.C.No.67 of 2002, dated 14.05.2004, indicates that the Commissioner has not rendered any finding as to whether the respondent/claimant comes within the definition of 'dependant' as per Section 2 (d) of the Workmen's Compensation Act, 1923. Moreover, the respondent/claimant/P.W.1, has not pleaded in his claim petition that he is a dependant of his deceased father Subramanian and further that he has also not let in any evidence to show that he is a dependant of the deceased Subramanian/workman. Therefore, the Commissioner/Tribunal without going into these details or dealing with these issues in accordance with law, has ultimately awarded the respondent/claimant a compensation of Rs.89,433/- (Rupees Eighty Nine Thousand Four Hundred and Thirty Three only).
23. To put it differently, this Court opines that the duty cast on the Commissioner/Tribunal statutorily has not been complied with and consequently, his award suffers from error apparent on its face.
24. In that view of the matter, this Court comes to the inescapable conclusion that the Commissioner/Tribunal is not correct in awarding the compensation to the respondent/claimant without recording a specific finding whether the respondent/claimant comes within the definition of 'dependant' as per Section 2(d) of the Workmen's Compensation Act and further that, this Court also holds that the Commissioner/Tribunal is not correct in entertaining the claim petition of the respondent/claimant in the absence of pleading and evidence to the effect that the respondent/claimant is a dependant of the deceased workman Subramanian and the points are answered accordingly. Finding on the substantial question of law No.3:
25. It is pertinent to point out that P.W.2, Isakki, in her evidence has stated that she used to wash clothes after taking the same from Indira Lodge where she worked for fifteen years and that she knew the respondent/claimant's father Subramanian for the past fifteen years who worked in the appellant/respondent's Management as watchman-cum-room boy and that the deceased Subramanian on 06.01.2002 at about 10.45 a.m, while proceeding to a room in upstairs in connection with his employment, suffered chest pain and she along with one Lilly took him in an auto and got him admitted in Bala Clinic where artificial inspiration was given, but he died and that she is working presently under the appellant/respondent's Management.
26. R.W.1, Thiagarajan, in his evidence has stated that he is the respondent in the case and he is the administrator of the Indira Complex and that the respondent/claimant's father has not worked from 01.08.1985 and it is not correct to state that the respondent/claimant's father has expired while working in their Complex on 06.01.2002 and that on 06.01.2002, there is no establishment as 'Indira Lodge' and that the Indira Lodge has been changed into Indira Complex and ten years have been passed by and it is wrong to state that Lilly and Isakki have worked along with the respondent/claimant's father when the latter has not been keeping good health and it is a lie to state that they have taken the deceased Subramanian to the Hospital.
27. R.W.2, Kumar, in his evidence has stated that his office is in Indira Complex and that he is a tenant for the past seven/eight years and in the Complex, for cleaning, there are no men and even in the Complex Management, there are no men and that Subramanian has not worked and that the building is in the name of Indira Complex.
28. R.W.3, Samyrajan, in his evidence has stated that he is a cotton broker having office at Indira Complex for the past eight years and the deceased Subramanian has not worked in the said Complex.
29. R.W.4, Dr.R.S.Sittambalam, in his evidence has stated that on 06.01.2002, the deceased Subramanian was brought to his hospital and that the said Subramanian was not informed as to where he was working and he was not informed the residential address and he is not aware as to whether the deceased Subramanian is a long term patient and the said Subramanian has expired in his hospital within fifteen minutes of his arrival and in the hospital records, his death has not been registered and that he has given a certificate after a month of the demise of the deceased Subramanian.
30. In Ex.P.1, certificate issued by R.W.4, Dr.R.S.Sittambalam, it is mentioned that the deceased Subramanian died of Myocardial Infarction on 06.01.2002 at 11.30 a.m. Ex.P.3, is the lawyer's notice which has been issued by the respondent/claimant and addressed to the Indira Lodge Administrator dated 14.02.2002. Ex.P.4 is the lawyer's reply sent on behalf of the appellant/respondent Management and addressed to the respondent/claimant's advocate dated 21.02.2002. In Ex.P.6, Medical Certificate of Cause of Death, dated 21.01.2002, issued by R.W.4, in respect of the deceased Subramanian, the cause of death is mentioned as 'Myocardial Infarction' and it is further mentioned that due to '(a) Cardiogenic Shock and I.H.D.
31. In the instant case on hand, though the respondent/claimant in his claim petition has averred that his father deceased Subramanian has been working for twelve hours per day in any shift (i.e, Day shift 6 a.m to 6 p.m and Night shift 6 p.m to 6 a.m). R.W.4, Dr.R.S.Sittambalam, has not stated in his evidence that the employment of the deceased Subramanian for twelve hours has been the contributory cause and has accelerated his injury to the heart and he died due to heart attack which has arisen out of and in the course of his employment with the appellant/respondent Management. Further, there is no evidence to show that the deceased Subramanian's death due to Myocardial Infarction has occurred due to the stress and strain of working and fatigue, while doing his work. Further, the Commissioner/Tribunal, has not rendered any finding whether the strain and stress of working for twelve hours by the deceased Subramanian has contributed to the fatal accident. Also, there is no sufficient or clinching medical evidence in this case to know whether the death of the deceased Subramanian due to Myocardial Infarction has any direct and proximity nexus with his employment as watchman-cum-room boy in Indira Lodge/Complex. In fact, R.W.4, Dr.R.S.Sittambalam, has not whispered anything about this aspect in his evidence before the Commissioner/Tribunal.
32. It is significant to point out that in the award of the Commissioner/Tribunal, it is not stated whether Section 3 (1) of the Workmen's Compensation Act is attracted in regard to the employer's liability for payment of compensation. Suffice it to state that though Ex.P.6, Medical Certificate of Cause of Death refers to the cause of death of the deceased Subramanian as Myocardial Infarction and due to Cardiogenic Shock, R.W.4, has not whispered anything about it in his evidence.
33. It is for the respondent/claimant to prove the casual connection between the heart attack and his father's employment as watchman-cum-room boy.
34. The Commissioner/Tribunal in the award has stated that Myocardial Infarction is related to Heart Attack and he has referred to Ex.P.1, certificate issued by R.W.4. Suffice it to state that a finding should necessarily be given by the Commissioner/Tribunal that there has been a casual connection between the employment and the accident. In fact, the Commissioner/Tribunal has not gone into the aspect of the cause of death of the deceased Subramanian and recorded his finding in this regard.
35. Therefore, in the light of the discussions mentioned supra and on overall assessment of the facts and circumstances of the case, this Court holds that the award of the Commissioner/Tribunal is vitiated for not considering the cause of death of the deceased Subramanian/workman in accordance with law and the finding is rendered accordingly.
36. In fine, for the foregoing reasons, this Court allows the Civil Miscellaneous Appeal. Resultantly, the award dated 14.05.2004 passed in W.C.No.67 of 2002 by the Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Tirunelveli, is set aside and the proceedings are remitted to the Commissioner/Tribunal with a direction to dispose of the claim of the respondent/claimant afresh strictly in conformity with the provisions of the Workmen's Compensation Act and the Rules framed thereunder after providing due opportunity to adduce additional or fresh evidence to all the parties concerned, within a period of three months from the date of receipt of a copy of this order. Liberty is given to the respondent/claimant to implead his two sisters in the claim petition for proper and effective adjudication of the claim in the manner known to law. In C.M.P.(MD)No.1536 of 2004, this Court has passed order on 01.11.2004 inter alia stating that the respondent/claimant is entitled to withdraw the remaining 50% of the deposited amount on furnishing security. The Commissioner/Tribunal is directed to take into consideration the position as obtaining on the date of death of the deceased Subramanian/workman while deciding who are the dependants and the amount awarded shall be apportioned. While passing fresh award, the Commissioner/Tribunal shall bear in mind the amount already withdrawn by the respondent/claimant as per the order of this Court in C.M.P.(MD)No.1536 of 2004 dated 01.11.2004 and pass suitable orders including redeposit if any, as he deems fit and proper on the facts and circumstances of the case in issue. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs bearing in mind the facts and circumstances of the case.
rsb To The Workmen's Compensation Commissioner (Deputy Commissioner of Labour), Tirunelveli.