Madras High Court
Thiru.Murugan vs Tmt.Maya on 4 July, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/07/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.781 of 2005 and C.M.P.No.4943 of 2005 and M.P.No.1 of 2006 Thiru.Murugan, Proprietor, M/s.Rajukanna Fire Works, 2-A, N.R.K.R. Road, Sivakasi, Virudhungar, District. ... Appellant vs. 1.Tmt.Maya 2.Minor Thamarai Selvi 3.Selvi Vijaya Lakshmi 4.New India Assurance Company Ltd., Through its Branch Manager, Sivakasi. ... Respondents Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, 1923, against the order of the Commissioner for Workmen's Compensation, (Deputy Commissioner of Labour), Tirunelveli dated 02.05.2005 received by the Appellant on 8.6.2005 in W.C.No.102 of 2003. !For Appellant ... Mr.G.Arunachalam For M/s.P.Chandra Bose ^For RR 1 and 3 ... Mr.T.Selvakumaran For R 4 ... Mr.M.Ramanathan :JUDGMENT
This Civil Miscellaneous Appeal is filed under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 02.05.2005 passed by the Deputy Commissioner of Labour, Tirunelveli in his capacity as Commissioner for Workmen's Compensation in W.C.No.102 of 2003.
2.The first respondent before the lower authority/employer is the appellant herein. The respondents 1 to 3 are the dependants and legal representatives of Kalimuthu, the deceased workman. The insurer is the fourth respondent herein/the second respondent before the lower authority. The respondents 1 to 3 herein claiming to be the dependants and legal representatives of the deceased workman Kalimuthu preferred a claim on the file of the Commissioner for Workmen's Compensation, Tirunelveli under Sections 4/21 of the Workmen's Compensation Act, 1923 claiming a total sum of Rs.4,59,270/- as compensation for the death of the above said Kalimuthu. It was contended therein that the deceased Kalimuthu who was employed by the appellant herein in its Fire Works Factory as a Watchman died in a fire accident that arose out of and in the course of employment while he was on duty at about 6.30 p.m. on 22.02.2003. The said claim was resisted by the appellant herein contending that the deceased, who was expected to be at the entrance of the factory premises, had no business to enter the factory premises, especially the stock room; that it was not within the scope of his duty to check each and every room of the Fire Works Factory to find whether they were locked or not that the enquiry conducted by the Management revealed that the fire broke out when the deceased made an attempt to open the door of the room in which explosive stocks had been stored and that hence, the accident could not be construed as one arising out of and in the course of the employment of the deceased. The claim was also resisted on the ground that the compensation claimed was highly excessive and exorbitant and that the age and monthly wages of the deceased had been given incorrectly in order to make a larger claim and thereby achieve a wrongful gain. The claim was also resisted by the Insurance Company, the fourth respondent herein/second respondent before the lower authority on the ground that there was only a Group Insurance Policy taken by the appellant/first respondent and as per the terms of the Group Insurance Policy a sum of Rs.50,000/- had already been paid and hence, the fourth respondent herein/second respondent before the lower authority should be exonerated from making any further payment.
3.Based on the above said pleadings, the learned Commissioner for Workmen's Compensation conducted an enquiry in which the first respondent herein/first claimant was examined as the sole witness on the side of the claimants. One Saravanan was examined as R.W.1 on behalf of the appellant herein/first respondent whereas one Krishnan, the Administrative Officer of the fourth respondent herein/second respondent before the lower authority was examined as R.W.2. As many as six documents marked as Exs.P.1 to P.6 were relied on by the claimants. Three documents were marked on the side of the appellant/first respondent and four documents were marked on the side of the fourth respondent herein/second respondent before the lower authority.
4.At the conclusion of enquiry, the learned Commissioner for Workmen's Compensation, on an appreciation of evidence, came to the conclusion that the deceased died in an accident arising out of and in the course of his employment as a Watchman under the appellant/the first respondent, assessed the compensation payable under the Workmen's compensation Act at Rs.1,53,090/- and directed the appellant/first respondent to pay a sum of Rs.1,03,090/- after deducting Rs.50,000/- already paid by the insurer, the fourth respondent herein/the second respondent before the lower authority in accordance with the terms of Group Insurance Policy. The Commissioner for Workmen's Compensation rejected the contention of the claimants that the deceased was in receipt of Rs.6,000/- as monthly wages and accepted the contention of the appellant/the first respondent that he was in receipt of a sum of Rs.34/- per day on daily wage basis. Nevertheless, opining that the said amount was below the minimum wages notified, the Commissioner took the monthly wages of the deceased at Rs.2,000/- and thus, arrived at the above said figure of Rs.1,53,090/- as the total compensation to which the dependants and legal representatives of the deceased were entitled.
5.Challenging the above said award on the grounds set out in the memorandum of appeal, the appellant herein/the first respondent before the lower authority has brought forth this appeal under Section 30 of the Workmen's Compensation Act.
6.This Court heard the submissions made by Mr.G.Arunachalam, learned counsel for the appellant, by Mr.T.Selvakumaran, learned counsel for the respondents 1 to 3 and by Mr.M.Ramanathan, learned counsel for the 4th respondent and paid its considerations to the same. The Court has also perused the relevant records.
7.The award passed by the Deputy Commissioner of Labour, Tirunelveli in his capacity as the Commissioner for Workmen's Compensation, Tirunelveli on 02.05.2005 in W.C.No.102 of 2003 is challenged in this Civil Miscellaneous Appeal by the employer of the deceased. As per Section 30 of the Workmen's Compensation Act, no appeal shall lie against the award passed by the Commissioner with the exception that an appeal on a substantial question of law shall lie to the High Court. Of course five questions have been set out in the memorandum of appeal as the substantial questions of law involved in this appeal. But, after going through the relevant records, this Court is of the view that only the following two substantial questions of law are involved in this appeal. They are:
1) Whether the deceased died in an accident arising out of and in the course of his employment under the appellant? And
2)Whether the Commissioner for Workmen's Compensation has not followed the legal procedure prescribed for calculating the monthly wages of the deceased?
8.It is not in dispute that the deceased Kalimuthu was a Workman under the appellant and that he died in a fire accident that occurred on 22.2.2003 at about 6.30 p.m. in the factory premises. The first objection raised by the appellant herein before the lower authority was that the deceased Kalimuthu was engaged as a night Watchman at the gate of the factory and his duties and responsibilities were only to watch and protect the factory at the entrance; that if any thief and trespasser entered into the factory without his knowledge during the night hours or any untoward incident happened inside factory premises like fire etc., then only the night Watchman should enter the factory premises; that it was not his duty to check each and every room of the fire works factory to find out whether they were locked or not; that on enquiry, it was found by the appellant that the deceased, with oblique motive, tried to open the door of a room wherein explosives had been stored and the same resulted in the said accident and that hence, the accident would not be construed as one arising out of and in the course of his employment as a Watchman.
9.The specific case of the respondents 1 to 3/claimants is that the deceased Kalimuthu, while checking the rooms of the Fire Works Factory found the room for mixing the white powder with chemicals kept open and tried to lock the door and that while doing so, the explosives found therein suddenly exploded as a result of which, he was thrown away causing injuries leading to his subsequent death after four days on failure of treatment. In this regard, P.W.1 has deposed in line with the averments found in the claim petition. On the other hand, it is the contention of the appellant that the deceased with an oblique motive tried to open the doors of the white powder mixing room which had been properly locked and that as a result of such an attempt the explosion occurred. The contention of the appellant that the deceased did not have any business to leave the gate and enter the factory premises except under certain contingencies; that it was not the duty of the deceased to check each and every room of the factory to confirm that they were properly locked and that the deceased with the intention of stealing the explosives had gone to the white powder mixing room and tried to open the door which had been locked. Even then, the only witness examined on the side of the appellant, namely, R.W.1 would admit that the factory would be kept open from 8.00 a.m. and the same would be closed at 5.30 p.m.; that the accident took place at 6.30 p.m. and that he was not aware of the purpose for which the deceased went to the white powder mixing room and pulled the door. It is the further admission of R.W.1 that the white powder mixture could not be stolen and then sold in the market and that the same could be sold only by a duly licensed person. As it has been admitted by R.W.1 that the white powder mixer cannot be stolen and sold, the contention of the appellant that the deceased had gone to the white powder mixing room in order to steal the said explosive does not hold water in it. On the other hand, the admission made by R.W.1 that he was not aware of the purpose for which the deceased went to the said room makes the story propounded by the respondents 1 to 3/claimants probable. There is no unambiguous denial of the claimant's contention that the said room was found open and the deceased, being the Watchman of the factory, tried to close it and that in the said process, perhaps due to the friction, the explosion might have occurred.
10.It is also not in dispute that the said accident took place while the deceased was on duty. But the only contention of the appellant is that the accident did not arise out of and in the course of employment. The appellant has not produced any document evidencing the duties and responsibilities of night Watchmen of the factory. No document containing the duties and responsibilities of night Watchmen has been produced. There is no record, produced on the side of the appellant, to show that the night Watchmen in the factory had been instructed that it was not their duty to check each and every room and find whether they were locked or not. On the other hand, if any room was found open and some articles from the said room were found missing, there was no guarantee that the night Watchman would be absolved of any responsibility by stating that it was not his duty to check each and every room. Therefore, no oblique motive can be attributed to the act of the deceased in trying to lock the white powder mixing room, when he found the same has been omitted to be locked. Hence, this Court is not able to accept the contention of the appellant that it was not the duty of the deceased to lock the door of the white powder mixing room and that the explosion that occurred while he was trying to lock the door of the said room could not be construed as an accident arising out of and in the course of his employment as a Watchman under the appellant. The lower authority namely, the Commissioner for Workmen's Compensation has correctly applied the relevant statutory provision to the facts of the case and has given a correct finding that the accident in question was the one arising out of and in the course of employment. This Court finds no reason, what so far, to interfere with the said finding of the lower authority. There is no infirmity or discrepancy in the said finding of the lower authority and hence, the same deserves to be confirmed.
11.In the foregoing discussions, it has been pointed out that the accident in which the deceased Kalimuthu sustained injuries leading to his subsequent death arose out of and in the course of his employment as Watchman under the appellant. Therefore, there cannot be any impediment to come to the consequential conclusion that the respondents 1 to 3 who are the wife and children of the deceased workman are entitled to compensation under the Workmen's Compensation as the dependants and legal heirs of the deceased. The age of the deceased, at the time of his death, was fixed by the Commissioner at 50 years relying on the copies of the Post-mortem Certificate and the Inquest Report marked as Exs.P.2 and P.3. The learned counsel for the appellant argued that the age of the deceased noted in the Post-mortem certificate was only approximate; that a more authenticated document namely, Ex.P.6-copy of the family card should have been relied on. It is quite common that wrong particulars regarding the age of the members of the family are found in several family cards and very often approximate age is noted in the family cards. The more authenticated documents in proof of the age of a particular person like Birth Certificate and School Certificate are not available in this case. When three documents, all of them containing approximate age of the deceased, have been produced, the resolution of the question regarding the age shall be based on an appreciation of the evidentiary value of those documents. In this case, besides the copies of the Post-mortem Certificate and Inquest Report marked as Exs.P.2 and P.3, the first claimant as P.W.1 has also stated in clear terms that her husband was aged 50 years at the time of his death. When the case of the claimants regarding the age of the deceased is consistent throughout, there is no consistency in the defence case of the appellant. In the counter statement, it has been stated that the deceased was aged 58 years at the time of his death. On the other hand, during enquiry, it was projected on the side of the appellant that the deceased had crossed the age of 60 when he died. Considering the above said aspects, the learned Commissioner for Workmen's Compensation has given a clear finding regarding the fact in issue namely, the age of the deceased which cannot be interfered with in this appeal unless the same is proved to be perverse. The finding of the lower authority regarding the age of the deceased can, at no stretch on imagination, be claimed to be perverse and hence, the same deserves to be confirmed.
12.This Court finds substance and force in the next contentions raised on behalf of the appellant. The Commissioner has assessed the monthly wages of the deceased workman at Rs.2,000/- and on that basis, calculated the compensation payable to his dependants. According to the learned counsel for the appellant, there was no legally sustainable basis for taking the monthly wages of the deceased at Rs.2,000/-. It is the case of the respondents 1 to 3/claimants that the deceased was getting Rs.6,000/- per month as wages. To substantiate the said contention, there is no evidence excepting the interested testimony of P.W.1. Hence, the lower authority has rightly rejected the above said contention of the claimants.
13.As per the documents Exs.R.1 and R.2 produced on the side of the appellant, the deceased workman was initially paid wages at the rate of Rs.28/- per day, which was subsequently increased to Rs.30/- and once again increased to Rs.34/-. Pointing out that the above said amount was far below the minimum wages notified, the lower authority/Commissioner for Workmen's Compensation has rejected the said documents also. At the same time, the lower authority has taken the monthly wages of the deceased workman at Rs.2,000/-. This was done even without assigning any reason as to how the figure was arrived at. The learned counsel for the appellant rightly contended that the lower authority/Commissioner for Workmen's Compensation fixed the above said amount as monthly wages for the computation of compensation under the Workmen's Compensation Act arbitrarily without assigning any reason. Having rejected the plea made by the respondents 1 to 3 herein/claimants before the lower authority as well as the appellant herein/the first opposite party before the lower authority regarding the wages drawn by the claimant, the lower authority should have at least followed the minimum wages notified in this regard. For the question - "whether the lower authority at least adopted the minimum wages notified for the relevant period?, definitely the answer shall be "not". The minimum wages applicable to a watchman working in a Fire Works Manufactory is Rs.625/- (basic) + Rs.843.60 (dearness allowance) = Rs.1,468-60 p. On the other hand, the lower authority has fixed the monthly wages of the deceased workman at Rs.2,000/-. Hence, it is patent that the same does not conform to the minimum wages. In this case, yet another aspect capable of affecting the decision regarding the wages of the deceased workman has been completely ignored. The said aspect is nothing but a plea made by the fourth respondent. The 4th respondent/the second opposite party, in paragraph 5 of its counter statement, has stated that the deceased workman was employed in the factory of the appellant for a period of six months and he was drawing Rs.60/- as daily wages. If the same is taken into consideration, the amount found in Ex.R.2 can be regarded as reflecting the minimum basic wages alone. As found in the counter statement of the 4th respondent/the second respondent, the wages of the claimant inclusive of dearness allowance can be taken as Rs.60/- per day which is equivalent to Rs.1,800/- per month.
14.The relevant factor for a worker who died at the age of 50 is 153.09 as per the formula. The compensation for the death of the workman should be calculated as follows:
1800 x 50 x 153.09 = ------------------ = Rs.1,37,781/-100
The said amount shall be the amount which could have been legally awarded as compensation to the respondents 1 to 3, the dependants of the deceased workman. Therefore, the total amount of compensation arrived at by the lower authority deserves to be reduced to Rs.1,37,781/- from 1,53,090/- is also not in dispute that the respondents 1 to 3/claimants have received a sum of Rs.50,000/- from the 4th respondent payable as per the Group Insurance Scheme. The said amount should be deducted from the above said amount and the balance alone shall be recoverable from the first respondent. Admittedly, there was no insurance coverage covering the liability of the appellant under the Workmen's Compensation Act, excepting the Group Insurance Scheme in which the liability of the insurer is limited to the extent of Rs.50,000/-. Therefore, the balance amount of Rs.87,781/- shall be payable by the appellant alone.
15.In the result, this Civil Miscellaneous Appeal is allowed in part and the award dated 02.05.2005 passed by the Commissioner for Workmen's Compensation, (Deputy Commissioner of Labour), Tirunelveli in W.C.No.102 of 2003 is modified by reducing the total amount of compensation from Rs.1,53,090/- to Rs.1,37,781/-. Out of the above said amount deducting a sum of Rs.50,000/- already paid by the insurer under the Group Insurance Scheme, the liability of the appellant employer is fixed at Rs.87,781/-. The appellant shall be entitled to the refund of the balance amount. There shall be no order as to costs. Consequently connected miscellaneous petitions are closed.
sgl To The Deputy Commissioner of Labour Commissioner for Workmen's Compensation, Tirunelveli.