Madras High Court
C.Arumugham @ Raj vs Revathi on 8 October, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 8 .10.2014
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
C.M.A.No.435 of 2012
and M.P.Nos.1 of 2012 and 1 and 2 of 2014
C.Arumugham @ Raj ... Appellant
vs.
1.Revathi
2.Minor Aradhana
3.Mathavi ... Respondents
(minor 2nd respondent is
represented by guardian and
mother Revathi)
Civil Miscellaneous Appeal has been filed under Section 30 of the Workmen Compensation Act, 1923 against the award dated 18.1.2012 made in W.C.No.13 of 2011 on the file of the Commissioner of Workmen Compensation cum Deputy Commissioner of Labour, Coimbatore.
For appellant : Mr.R.G.Narendhiran
For respondents : Mr.S.Prabhu, for
Mr.S.Parthasarathy,
Reserved on : 23.9.2014
JUDGMENT
This appeal has been filed as against the award dated 18.1.2012 made in W.C.No.13 of 2011 on the file of the Commissioner of Workmen Compensation cum Deputy Commissioner of Labour, Coimbatore, directing the appellant herein to pay a sum of Rs.7,97,600/- as compensation along with interest at the rate of 12% per annum after 30 days from the date of accident, to the respondents herein, who are the legal heirs of deceased Madhu.
2. Respondents 1 to 3 are claimants before the Tribunal. They are wife, daughter and mother of the deceased Madhu respectively.
3. It is the case of the claimants before the Tribunal, that on 24.7.2010 at about 5.30 p.m., while the deceased Madhu was painting the Wall of C.M.Kalyana Mandapam belonging to the appellant herein, he fell down and sustained grievous injuries. Immediately, he was taken to Ramakrishna Hospital. In spite of the best treatment given to him, he died on 4.8.2010 at 21.15 hours. Since the deceased had died in the accident during the course of employment, the respondents / claimants filed a petition under Section 22 of the State Employees Insurance Act r/w Section 4(A) of the Employees' Compensation Act, 1923, as against the owner of the C.M.Kalyana Mandapam viz., the appellant herein, claiming a sum of Rs.14,14,000/- as compensation.
4. The case of the respondents / claimants was resisted by the appellant herein by filing counter statement inter alia stating that it is false to state that the deceased Madhu had sustained injuries while he was doing the painting work in C.M.Kalyana Mandapam belonging to the appellant. The said statement was made by the respondents only to bring the case within the ambit of The Employee's Compensation Act, 1923. The actual fact is that the appellant herein was constructing a new house for his residential purpose, which is 300 feet away from C.M.Kalyana Mandapam. The deceased Madhu, who was a painting contractor, approached the appellant for painting contract and the painting work of the house was entrusted to the deceased Madhu on 22.7.2010. A total sum of Rs.25,000/- was fixed to complete the painting work at the house of the appellant and an advance of R.10,000/- was received by the deceased on the same day. The deceased employed three persons to do the painting work at the house of the appellant and he had only supervised the entire work by frequently visiting the place as a contractor. The deceased also used to work along with other employees. While so, on 24.7.2010, in order to complete the work, the deceased Madhu joined with the other workers and started to do the painting work. At that time, while he was climbing up a big stool, he fell down and suffered injuries. The appellant had admitted him in the hospital. But, on 4.8.2010, he had died. Suppressing the above materials facts, the respondents have filed the claim petition as if the deceased had died while he was doing the painting work in C.M.Kalyana Mandapam. As per the provisions of the Workmen's Compensation Act, 1923, a person doing work in a residential house cannot be termed as 'workman' and hence, the claimants cannot make a claim under the Workmen Compensation Act, 1923 and only the workers, who are working in the areas specified in Schedule-II of Employee's Compensation Act, 1923 alone are entitled to claim compensation under the Workmen Compensation Act, 1923. Hence, the claim petition is liable to be dismissed.
5. Before the Deputy Commissioner of Labour, in order to prove the claim, on the side of the respondents/claimants, the wife of the deceased Madhu examined herself as P.W.1 and 8 documents were marked as Exs.P.1 to P.8. On the side of the appellant, the appellant examined himself as R.W.1 and marked 2 documents as Exs.R.1 and R.2.
6. The Deputy Commissioner of Labour, after analysing the entire evidence, both oral and documentary, has come to the conclusion that though the appellant has claimed that the deceased was only a Contractor and not an employee, he has not established the same by producing sufficient evidence. Thus, by rejecting the defence put forth by the appellant, the Deputy Commissioner of Labour has come to the conclusion that the deceased employee Madhu had died only during the course of employment under the appellant. By arriving at such a finding, the Deputy Commissioner of Labour has made calculation under different heads as per the provisions of the Employee's Compensation Act, 1923 and awarded a sum of Rs.7,97,600/- as compensation and directed the appellant herein to deposit the same with interest at the rate of 12% per annum after 30 days from the date of accident. Aggrieved over the same, the present appeal has been filed.
7. It is the main submission of the learned counsel appearing for the appellant that on the date of accident, the deceased Madhu was doing the work of painting in the house of appellant, which was under construction. As per the definition under Section 2(1)(n) of the Workmen's Compensation Act, 1923, the painting work of a residential house of an individual will not come under the domain of the Act. Only in order to bring the case within the ambit of the Workmen's Compensation Act, 1923, purposely, in the claim petition, a false statement has been made as if the death of the deceased had occurred while he was doing painting work in C.M.Kalyana Mandapam belonging to the appellant. In this regard, learned counsel appearing for the appellant by inviting the attention of this Court to the First Information Report registered in this case, submitted that in the First Information Report given by one Raja, it has been stated that the accident had occurred while the deceased was doing painting work in the house of the appellant. Even in the charge sheet filed by the Inspector of Police, P.9 Police Station, the place of occurrence was mentioned only as the house of the appellant. Since the deceased was engaged in the work of painting the house of the appellant, he will not come within the definition of 'workman' as defined under Section 2(1)(n) of the Workmen's Compensation Act, 1923. In this regard, learned counsel appearing for the appellant has relied upon the decision of the Hon'ble Apex Court in the case of Lakshminarayana Shetty v. Shantha and another reported in (2003) 9 Supreme Court Cases 190, wherein, it has been held that by engaging a person for the work of painting under contract will not fall within the four corners of the Workmen's Compensation Act, 1923.
8. Per contra, learned counsel appearing for the respondents submitted that the definition under Section 2(1)(n) of the Workmen's Compensation Act, 1923 was omitted by the Act 45 of 2009 with effect from 18.1.2010, whereas the accident had occurred on 24.7.2010, i.e., subsequent to the date of omission. Now, after the amendment of the Act, the word 'workman' was substituted by the word 'employee'. Now, the Act is known as Employee's Compensation Act, 1923. In view of the omission of Section 2(1)(n) in the Employee's Compensation Act, now the appellant cannot deny the payment of compensation to the legal heirs of the deceased stating that the person engaged in the painting work of a house will not come within the purview of Employee's Compensation Act, 1923. Therefore, the judgment relied upon by the learned counsel appearing for the appellant reported in (2003) 9 Supreme Court Cases 190, cannot be made applicable to the facts of the present case. Further, by inviting the attention of this Court to clause (viii) of Schedule II of the Employee's Compensation Act, learned counsel appearing for the respondents submitted that the persons employed in the construction of any building would fall within the meaning of 'employee' as defined under Section 2(1)(dd) of the Employee's Compensation Act, 1923. Further, by inviting the attention of this Court to Section 2(e), learned counsel appearing for the respondents submitted that an employee, who lent temporary service to an employer, has to be construed as an employee of that employer. Therefore, the appellant cannot deny payment of compensation to the legal heirs of the deceased Madhu. Further, as next fold of submission, the learned counsel appearing for the respondents submitted that the appellant has not deposited the accrued interest as directed by the Deputy Commissioner of Labour. Unless the compensation amount along with interest is deposited, the appeal is not maintainable for want of sufficient compliance of the requirement of Third Proviso to Section 30(1) of the Employee's Compensation Act, 1923. Therefore, on this ground also, the appeal is liable to be dismissed. In this regard, learned counsel appearing for the respondents relied upon the decision of this Court in the case of Oriental Insurance Co. Ltd. v. R.Mahalingam reported in 2012 (2) TN MAC 750 and an unreported judgment of this Court dated 12.12.2012 made in M.P.No.1 of 2011 in CMA SR No.91419 of 2011.
9. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record.
10. It is the case of the respondents that on 24.7.2010, while the deceased Madhu was painting the wall of C.M.Kalyana Mandapam belonging to the appellant, he fell down and sustained grievous injuries and subsequently, had died in the hospital. Though the appellant has admitted the accident, he denied the case of the respondents that on 24.7.2010, the deceased was doing the painting work in his Kalyana Mandapam. It is the specific defence of the appellant that on the date of accident, while the deceased Madhu was doing the painting work in his house, which was under construction, he met with the accident. Only in order to bring the case within the ambit of the Employee's Compensation Act, 1923, purposely the respondents have stated in the claim petition as if the deceased was doing painting work in the Kalyana Mandapam of the appellant at the time of accident. In this regard, learned counsel appearing for the appellant has invited the attention of this Court to the First Information Report and Charge sheet filed by the police before the trial Court and submitted that in the First Information Report and charge sheet, the place of occurrence was shown as house of the appellant herein. As per Section 2(1)(n) of the Workmen's Compensation Act, 1923, the person involved in the painting work of a house will not come within the meaning of 'workman'. But, as contended by the learned counsel appearing for the respondents, Section 2(1)(n) was omitted by Act 45 of 2009 with effect from 18.1.2010. The accident had occurred only after the date of omission of the said Section. The effect of the said omission is that the employees found in the list of persons mentioned in Schedule II of the Employee's Compensation Act, 1923 are eligible to get compensation. Clause (viii) of Schedule II of Employee's Compensation Act, 1923 reads as follows:-
"(viii) employed in the construction, maintenance, repair or demolition of --
(a) any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof; "
A reading of the said provision would show that the person employed in a construction of any building will come within the meaning of 'employee' as defined under Section 2(1)(dd) of the Employee's Compensation Act, 1923. As per the list of employees given in clause (viii) of Schedule II, I am of the opinion, even a person, who works in the house of an individual, if sustains injuries during the course of said employment, he is entitled for compensation under the Employee's Compensation Act, 1923. Therefore, the question as to whether the deceased was working in the Kalyana Mandapam or in the house of the appellant is totally immaterial after the omission of Section 2(1)(n) of the Employee's Compensation Act, 1923. Therefore, the judgment relied upon by the learned counsel appearing for the appellant reported in (2003) 9 Supreme Court Cases 190 cannot be made applicable to the facts of the present case.
11. It is the yet another submission of the learned counsel appearing for the respondents that though a direction was given by the Deputy Commissioner of Labour to the appellant to pay the compensation amount along with interest at the rate of 12% per annum after 30 days from the date of accident, the appellant has not deposited the interest amount. Without depositing the interest, the appellant has filed the present appeal, which would amount to non-compliance of the requirement of Third Proviso to Section 30(1) of the Employee's Compensation Act, 1923. Therefore, on this ground also, the appeal is liable to be dismissed. In this regard, the learned counsel appearing for the respondents has relied upon the decision of this Court reported in 2012(2) TN MAC 750 - Oriental Insurance Co. Ltd. v. R.Mahalingam, wherein, this Court, by relying upon the judgment reported in 1993 ACJ 736 ( J & K) - J & K SFC v. Ghulam Mohd, has held as follows:-
"21. Appeal in hand is not accompanied by the requisite certificate and therefore, instead of certificate, a letter addressed to the Commissioner enclosing a cheque accompanying the Memorandum of appeal cannot be termed to be the compliance to the requirement of Third Proviso to Section 30(1) of the Act, 1923. The Insurance Company / appellant having not deposited the interest accrued on its failure to deposit the amount within 30 days from the date of receipt of order and as the Memorandum of Appeal is not accompanied by a certificate by the Commissioner to the effect that the Appellant Insurance Company has deposited with him the amount payable under the order appealed against is not sufficient compliance of the requirement of Third Proviso to Section 30(1) of the Act, 1923 and as such I hold that the appeal filed by the insurance company is not maintainable."
As per Section 30(1) of the Employee's Compensation Act, 1923, deposit of award amount with interest within the statutory period is mandatory and only if the appellant satisfies the requirement in filing the appeal, the appeal could be entertained. But, here, the interest was not deposited by the appellant. Now, the appellant herein has taken out an application in M.P.No.1 of 2014 to condone the delay of 919 days in depositing a sum of Rs.1,43,568/- being the interest of the award amount of Rs.7,97,600/- and another application in M.P.No.2 of 2014 to permit him to deposit a sum of Rs.1,43,568/- towards interest on the award amount of Rs.7,97,600/-. I find that absolutely no sufficient cause has been made out in the application to condone the delay. Therefore, I am of the opinion, since the appellant has not complied with the mandatory requirement as per Third Proviso to Section 30(1) of the Employee's Compensation Act, 1923, on that ground also, the appeal is liable to be dismissed and further, I find that no substantial question of law is involved in this appeal to make an interference in the order passed by the Deputy Commissioner of Labour, Coimbatore.
12. In the result, the award of the Commissioner of Workmen Compensation cum Deputy Commissioner of Labour, Coimbatore, dated 18.1.2012 made in W.C.No.13 of 2011 is confirmed and the civil miscellaneous appeal is dismissed. No costs. Consequently, all the connected applications are closed.
8.10.2014 Index:Yes Internet:Yes sbi To
1.The Commissioner of Workmen Compensation cum Deputy Commissioner of Labour, Coimbatore
2.The Record Keeper, V.R. Section, High Court of Madras.
R.SUBBIAH, J sbi Pre-delivery judgment in C.M.A.No.435 of 2012 DATED: 8 .10.2014