Madras High Court
Management, Boys Town Society vs V. Palani And Anr. on 17 March, 1997
Equivalent citations: 1998ACJ559
JUDGMENT C.V. Govardhan, J.
1. This appeal is against the order passed by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Madurai, dated 19.5.1988 in W.C. No. 19 of 1987.
2. The petitioner in his petition contends as follows: Pitchaimani, son of the petitioners, was employed under the opposite party as an electrician. On 20.1.1984, as a result of the accident caused to him in the course of his employment under the opposite party, Pitchaimani died due to electrocution in the premises of the opposite party. The petitioners are dependants of Pitchaimani. Therefore, they have filed the claim petition for compensation of Rs. 21,600/-. Opposite party in its counter contends as follows: The allegation that Pitchaimani was employed under the opposite party as a wireman and as a result of the accident and during the course of his employment on 20.1.1984 at about 8 a.m., he died is not correct. Pitchaimani never worked under the opposite party as an electrician. He was not an employee of the opposite party. The opposite party was not aware of the accident and the particulars of death of Pitchaimani. The deceased cannot be considered as a workman under the opposite party. The petitioners are not dependants of the deceased. The claim application is not sustainable. It has come to the knowledge of the opposite party that Pitchaimani came to the premises of the opposite party with the intention of committing theft of wires and died. The petition is therefore liable to be dismissed.
3. On the above pleadings, an enquiry was held before the Commissioner for Workmen's Compensation and the Commissioner for Workmen's Compensation gave a finding that Pitchaimani was an employee of the opposite party who died in the course of employment, and the petitioners who are dependants are entitled to the compensation of Rs. 21,600/-.
4. Aggrieved over the same, the opposite party has come forward with this appeal.
5. The learned Counsel appearing for the appellant would argue that deceased was not a workman under the opposite party and his death was not as a result of any accident in the course of his employment under the opposite party. It is also contended by the learned Counsel appearing for the appellant that the petitioners who are parents of the deceased cannot be considered as dependants on the basis of the plea and the evidence placed before the court and therefore the order passed by the Tribunal directing the opposite party to pay compensation is to be set aside. The learned Counsel appearing for the respondents would, on the other hand, argue that the Commissioner for Workmen's Compensation has given a finding that the deceased was a workman under opposite party and since the question whether the deceased was a workman or not is only a question of fact and not a question of law, there is no substantial question of law involved in this matter and as such the appeal itself is not maintainable. It is also argued by the learned Counsel that the parents are dependants of the deceased.
6. The learned Counsel appearing for the appellant would argue that deceased was not employed under the opposite party will be seen from the extract of the insurance policy taken for the employees of the appellant society in which the name of the deceased is not mentioned and even if he is a 'casual' he cannot be considered as an employee since casuals are not employees as per the definition under Section 2(1)(n) of the Workmen's Compensation Act. The learned Counsel would argue that the name of the deceased is not in the Attendance Register of the opposite party and it would show that deceased was not an employee of the opposite party. The learned Counsel appearing for the respondents would on the other hand argue that the Attendance Register and the insurance policy are documents relating to the employees of the opposite party who reside in the premises itself and the deceased being a native of the same village, he is not residing there and he was working as workman under the opposite party and, therefore, he has to be treated as a workman as defined in Schedule II, clause xxxi. As per Section 2(1)(n) of the Workmen's Compensation Act, 'Workman' means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of employer's trade or business and who is employed in any such capacity as specified in Schedule II. As per Schedule II, the following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is among others employed in the maintenance, repair or renewal of electric fittings in any building. The deceased met his death in the premises of the opposite party. RW 1 says that the death was while attending to the repair works, but not at their instance. If it is not at their instance, how the deceased came to the premises of the opposite party has not been explained. It is stated that he came to commit theft of wires. If a person goes to a particular place to commit theft of wire, there is no necessity for him to come into contact with a live wire more especially when he is a licensed electrician who will know the consequences of the same. Therefore, the death of the son of the petitioners having taken place in the premises of the opposite party and the only witness on behalf of the respondent, viz., RW 1 having stated that Pitchaimani died while setting right the light in the cattle shed, it cannot be stated that Pitchaimani was not an employee of the opposite party. The Commissioner has given a finding that the deceased Pitchaimani was a workman under the opposite party. The question that has to be considered is whether the opposite party can file an appeal questioning this finding. It has been held in the decision reported in Ramaswami v. Poongavanam , that whether a person is a workman or not is a question of fact on which there can be no appeal as per Section 30 of the Workmen's Compensation Act. It has been held in the decision reported in Asmath Beebi v. Marimuthu (1990) 1 LLN 891, also as follows:
A question of fact, however substantial, cannot masquerade as a question of law and cannot automatically be treated as a substantial one even if the amount involved is substantial or the argument pressed is vehement. If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to the operation of the Act itself, one may designate the question of law as substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficulty of applying the facts to that law cannot make it a substantial question of law.
When we consider these two decisions, I am of opinion that the contention of the learned Counsel appealing for the respondent that the appeal itself is not maintainable since there is no substantial question of law as required under Section 30 of the Workmen's Compensation Act involved, is well-founded and on that ground itself, the appeal is liable to be dismissed.
7. The learned Counsel appearing for the appellant would argue that the parents of the deceased cannot be considered as dependants and in spite of the opposite party taking its stand to that effect in the counter, no issue has been framed as to whether the petitioners are dependants of Pitchaimani so as to enable them to get compensation from the opposite party and on that ground, the appeal has got to be allowed. It is no doubt true that the opposite party has taken a stand in the counter that the parents of the deceased are not dependants of Pitchaimani. But, it is not as if the parents cannot be considered as dependants without any reservation. It has been held in the decision reported in Kunnesingh v. Navia AIR 1966 Raj 36, that the father of a deceased workman can only be considered to be dependent on the deceased if it is shown that he was wholly or in part dependent on the earnings of the deceased workman at the time of the latter's death. Similarly, in the decision reported in St. Joseph's Automobile and Mechanical Works v. Soosai AIR 1953 Mad 206, it has been held that when the earnings of the deceased workman were hardly sufficient for his maintenance and no balance was left which would contribute to the family fund, the parents cannot be said to be dependant within the meaning of Section 2(1)(d). In the decision reported in B.M. Habeebullah Maricar v. Periaswami 1977 ACJ 517 (Madras), it has been held by our High Court as follows:
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 dependent 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 legal representatives of the deceased workman or to 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.
In the case on hand the deceased was the only son of the petitioners (parents) and it is not as if the petitioners are not getting any financial help from the deceased in order to hold that the earnings of the deceased were hardly sufficient for his own maintenance and no balance is left which would contribute to the family fund and, therefore, the parents cannot be considered as dependants. Pitchaimani was earning Rs. 600/- and he was unmarried. Therefore, the probability of the petitioners realising the fruits of his earnings at least in part cannot be ruled out to hold that the petitioners are not dependants. There is no one on whom the deceased would spend his earnings. The benefit of his earnings having been enjoyed by the petitioners either wholly or in part, it cannot be stated that the petitioners are not dependants to disentitle them for the compensation payable by the employer on the death of one of their workmen. Considering all these aspects, I am of the opinion that the appeal is without merit and is liable to be dismissed.
8. In the result the appeal is dismissed.