Madras High Court
Prakash vs S.Dhanasekar on 18 January, 2021
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.3120 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3120 of 2013
Prakash ..Appellant
Vs.
1.S.Dhanasekar
2.Iffco-Tokio General Insurance Co Ltd.,
Tulsi Complex, 3rd Floor,
195-TV Swamy Road (west),
R.S.Puram, Coimbatore 641 002.
..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, 1923, to set aside the order made in
W.C.No.271 of 2009 on the file of the Workmen's Compensation
Commissioner cum Deputy Commissioner of Labour, Salem dated
21.06.2013 which was served on the appellant herein on 11.07.2013.
For Appellant : Mr.C.Kulanthaivel
For Respondents : Mr.M.B.Raghavan for R2
: Service awaited for R1
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C.M.A.No.3120 of 2013
JUDGMENT
The award dated 21.06.2013 passed in W.C.No.271 of 2009 is under challenge in the present civil miscellaneous appeal.
2. The claim petition filed by the appellant under the Workmen Compensation Act is rejected mainly on the ground that the appellant has not established the employee employer relationship. At the time of the accident, admittedly the appellant sustained injury while repairing the tyre in lorry bearing Registration No.KA-22B-5212. The owner of the lorry is the first respondent one S.Dhanasekar. However, during the trial, the appellant has not established that the first respondent Dhanasekar is the employer and liable to pay compensation under the Workmen Compensation Act. In view of the fact that the employee employer relationship was not established by the claimant, the Deputy Commissioner of Labour rejected the claim petition.
3. The learned counsel for the appellant mainly contented as per the definition enumerated in Section 2 (e) of the Workmen compensation Act which reads as follows:
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https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013 ““employer” includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him.” Relying on the said provision, the learned counsel for the appellant reiterated that the factum regarding the accident was established and admittedly, the appellant was preparing lorry tyre during the accident.
Further, he has impleaded the owner of the lorry, the first respondent as a party to the claim petition. These facts are sufficient to grant compensation as the Workmen Compensation Act is a welfare legislation. Thus, the Deputy Commissioner of Labour committed an error in not considering the claim petition.
4. Per contra, the learned counsel for the second respondent disputed the said contention by stating that the Insurance Company is liable to settle the claims in accordance with the terms and conditions of the insurance policy. The driver is covered under the policy. Admittedly, 3/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013 the vehicle involved in the accident is having valid policy during the relevant period of time. However, during the cross examination itself, the claimant categorically deposed that he was not knowing the first respondent Dhanasekar and he has not receiving salary from Dhanasekar and his employer was one Prakash. The entire deposition during the cross examination reveals that the first respondent Dhanasekar is not an employer of the claimant. Therefore, the Deputy Commissioner of Labour rightly rejected the claim petition, there is no error as it is.
5. This Court is of the considered opinion that in the claim petition, the appellant has clearly stated that the first opposite party Dhanasekar is the owner of the lorry bearing Registration No.KA-22B- 5212. The said lorry was insured in the second opposite party viz., Iffco- Tokio General Insurance Company Limited. More importantly, in paragraph 5 of the claim petition, the appellant has clearly stated he was working with the first opposite party as Driver and receiving a monthly salary of Rs.6,000/- and Rs.100/- per day as daily batta. Then the claimant himself has categorically filed a statement that the first respondent Dhanasekar is the owner of the lorry and he was employed 4/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013 by Dhanasekar and was receiving salary from him. Then, he is bound to establish the same before the Trial Court.
6. Contrary to the said statement in the claim petition, the appellant has deposed during the cross examination as extracted hereunder:
"kDjhuh; (k/rh/1) ,uz;lhk; vjph;kDjhuh;
jug;g[ FWf;F tprhuizapy;. @ehd;
vGjpf;bfhLj;jjhf vg;/I/Mh;?y; cs;sjpy;
r';ffphp. br';fh Kdpag;gd;nfhtpiy nrh;e;j
gpufhc&; vd;gthpd; og;gh; yhhpapy; ntiy
bra;jjhf Fwpg;gplg;gl;Ls;sJ vd;why; rhp/ vdJ bgaUk; gpufhc&; vdJ Kjyhsp bgaUk; gpufhc&; vd;why; rhp/ vdJ Kjyhsp gpufhRf;F ghh;l;dh; gHdpr;rhkp vd;gth; cs;shh;/ vg;/I/Mh;?d; go me;j gHdpr;rhkpf;F og;gh; yhhp nf/V/22gp 5212 brhe;jkhdJ vd;why; vg;/I/Mh;?go rhp/ vg;/I/Mh;?y; ,e;j tz;o jdnrfUf;F brhe;jkhdJ vd;W v';Fk; Fwpg;gpltpy;iy vd;why; rhp/ jdnrfiu ehd; ghh;j;jjpy;iy/ jdnrfUila tpyhrk; vdf;F bjhpahJ/ vdf;F rk;gsk; bfhLj;J te;jJ gpufhc&; jhd;/ gpufhrplk; jhd; tpgj;Jf;F 2 khj';fSf;F Kd;g[ oiutuhf nrh;e;njd;;/ tpgj;J ele;j 5/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013 ,lj;jpy; gpufhc&; ,y;iy/ tpgj;J ele;j md;W ehd; vd;d ntiy bra;njd; vd;W gpufhRf;F bjhpahJ vd;why; rhpay;y/ mth;jhd; laiu jpUg;gpg;nghlr;brhy;yp vd;dplk; brhd;dhh;/ laiu jpUg;gpg;nghlr;brhy;yp gHdpr;rhkp brhy;ytpy;iy/ mth; tpgj;J ele;j ,lj;jpw;F tutpy;iy/ mUs; vd;gth; gpufhrplk; ntiy bra;jhh;/ mUs; c&pg;L oiuth;/ tHf;fpw;fhd Mtz';fis v';F nrfhpj;njhk; vd;gJ ehd;
kUj;Jtkidapy; ,Ue;jjhy; vdf;F
bjhpatpy;iy/ tHf;fpw;fhd tptu';fis
tHf;fwp"h; nrfhpj;jhh;/ ,d;Nud;!; ghyprpapd;go jdnrfud; vd;gth; jhd; yhhpapd; chpikahsh; vd;why; rhp/ jdnrfUila tpyhrk; bg';fS:h; vd;why; rhp/ gpufhira[k;. gHdpr;rhkpiaa[k; ehd; ,e;j tHf;fpy; vjphpahf nrh;f;ftpy;iy vd;why;. ehd; gpufhc&;. jdnrfh;. gHdpr;rhkp vd;gthplk; nfhUfpnwd;/ ,e;j tHf;fpy; gpufhira[k;.
gHdpr;rhkpiaa[k; vjph; jug;gpduhf
nrh;f;ftpy;iy vd;why; rhp/ tz;o chpikahsh;
jdnrfhplk; ehd; ve;j fhyj;jpYk; ntiy
bra;atpy;iy vd;why; rhpay;y/ nf/V/22gp/5212
vd;w yhhpf;Fk; Kjy; jfty; mwpf;ifapy;
brhy;yg;gl;Ls;s gpufhRf;Fk; vt;tpj rk;ge;jKk;
,y;iy vd;why; rhpay;y/ tpgj;J ele;j 17
ehl;fs; fHpj;J kw;wth;fSld; fye;jhnyhrpj;J
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C.M.A.No.3120 of 2013
nf/V/22gp/ 5212 thfdj;ij ,e;j rk;gtj;Jld;
bjhlh;g[gLj;jp vg;/I/Mh;/ bfhLf;fg;gl;Ls;sJ
vd;why; rhpay;y/ vd;id kUj;Jtkidapy;
nrh;j;jJ mUs;. gpufhc&; kw;bwhUth; tpgj;jpy;
mogl;lJ gw;wp gHdpr;rhkpf;F jfty; bjhpa[k;/
2k; vjph; kDjhuiu ,e;j tHf;fpy; rpf;fitf;f ntz;Lbkd;w nehf;fj;jpy; ,e;j tz;oia tHf;fpy; nrh;j;J ehd;. gpufhc&;. gHdpr;rhkp Mfpnahh; eltof;if vLj;Js;nshk; vd;why; rhpay;y/ gpufhRf;fhfnth. gHdpr;rhkpf;fhfnth ,e;j 2k; vjph;kDjhuh; ve;j el;l<Lk; bfhLf;f flikg;gl;ltuy;y vd;why; rhpay;y/@ ? vd;W bjhptpj;Js;shh;/”
7. A perusal of the deposition of the appellant in the cross examination itself crystal clear that the statement made in the claim petition was not established during the cross of the trial and more specifically, the appellant is unable to establish that he was employed by the first respondent Dhanasekar and salary was being paid by the first respondent to the appellant. In the absence of any evidence to establish the same, the Deputy Commissioner of Labour has rightly rejected the application and there is no infirmity or perversity as such. 7/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013
8. This being the factum, this Court is not inclined to consider the appeal. Accordingly, the award passed by the Deputy Commissioner of Labour in W.C.No.271 of 2009 stands confirmed and C.M.A.No.3120 of 2013 stands dismissed. No costs.
18.01.2021 Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order gsk 8/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013 To The Workmen's Compensation Commissioner cum Deputy Commissioner of Labour, Salem.
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gsk C.M.A.No.3120 of 2013 18.01.2021 10/10 https://www.mhc.tn.gov.in/judis/