Madras High Court
S.Madasamy vs Nallathambi on 31 May, 2006
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 06.01.2021
Date of Judgment 29.01.2021
CORAM:
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.27 of 2015
S.Madasamy : Appellant/Petitioner
Vs.
1.Nallathambi
2.Lilly Sarojini
3.Karutharaj : Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under
section 30 of the Workmen Compensation Act, 1923 against the
judgment and decree made in WC No.8 of 2003, dated 31.05.2006
passed by the Deputy Commissioner of Labour, Tirunelveli.
For Appellant : Mr.T.Selvakumaran
For Respondents : No appearance
JUDGMENT
(Thro' VC) Challenge made in this appeal is to the judgment and decree made in WC No.8 of 2003, dated 31.05.2006 by the Deputy Commissioner of Labour, Tirunelveli.
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2.It is the case of the claimant that 2nd respondent is the wife of the 1st respondent. The 3rd respondent is the winch contractor. The petitioner was employed by the 2nd respondent for deepening the well of her house for daily wages of Rs.150/- and that on 30.07.2002, while the petitioner was in the course of employment of deepening the well, suddenly the winch broke and fell down and due to which, he sustained fracture and other injuries and immediately, he was taken to a hospital for first aid by the co- employees and subsequently, he took treatment and due to the injuries, the petitioner had undergone surgery and caused 80% disability. Seeking compensation, the claimant approached the Deputy Commissioner of Labour, Tirunelveli. The Deputy Commissioner of Labour, Tirunelveli, after considering the materials available on record, both oral and documentary had awarded a sum of Rs.47,653/- holding that the 2nd respondent owner of the well as well as the 3rd respondent winch contractor responsible for the accident and directed them to pay the compensation equally. Aggrieved by the said compensation, the claimant is before this court as appellant. http://www.judis.nic.in 3
3.At the time of admitting this appeal, this court framed the following substantial questions of law:-
(i)Whether the learned Deputy Commissioner of Labour erred in failing to take into account the minimum wages for the Agricultural Coolie of Rs.4,500/- as monthly income for computing compensation, as per the judgment of the Hon'ble Supreme Court?
(ii)Whether the learned Deputy Commissioner of Labour erred in holding that the Orthopedic Doctor cannot decide the disability regarding Kidney?
(iii)Whether the learned Deputy Commissioner of Labour erred in fixing Rs.50/- as daily wages?
Substantial questions of Law 1 to 3:-
4.In this case, the dispute is in respect of quantum alone. The learned counsel appearing for the appellant/claimant argued that the claimant was employed by the 2nd respondent for digging the well of her house for daily wages of Rs.150/-, but the tribunal for arriving loss of income for the injuries sustained by the http://www.judis.nic.in 4 claimant, took daily wages at Rs.50/- per day, which is very meagre and the claimant earned Rs.4,500/- per month and hence, for arriving loss of income for the injuries, as per Section 4 of the Workmen Compensation Act, Rs.4,000/- towards monthly income is to be fixed for arriving loss of income and the claimant sustained 25% permanent disability and hence, the claimant is entitled to Rs. 1,27,074/- (Rs.4000/- x 60/100 x 2.11.79 x 25/100) towards loss of income and prays that the civil miscellaneous appeal has to be allowed.
5.In this case, the appellant/claimant only disputed the quantum. It is stated on the side of the claimant that he was employed by the 2nd respondent and earned Rs.150/- per day as daily wages. To prove it, no document was filed and no witness was examined on the side of the claimant. At the time of accident, the claimant was hale and health and hence, he would definitely earn Rs.100 per day. But the tribunal fixed Rs.50/- towards daily wages of the claimant, which is not correct. Hence, this court by calculating Rs.100/- per day towards daily wages, fixed the monthly income of the claimant at Rs.3,000/-. As per section 3 of the Workmen's Compensation Act, when the monthly income of the http://www.judis.nic.in 5 claimant is more than Rs.4,000/-, the monthly income of the claimant may be fixed as Rs.4,000/- for determining the loss of income of the claimant. But in the case on hand, the claimant failed to produce the relevant document to prove that at the time of accident, he earned Rs.4,500/- per month. Hence, it is held that for arriving loss of income of the claimant, the monthly income of the claimant can be taken as Rs.3,000/- per month. The tribunal fixed the disability of the claimant as 25%, even though the disability certificate for 63% was produced by the claimant stating that the Ortho Doctor has no power to determine the disability for Kidney. The view taken by the tribunal is correct. Hence, it is not necessary to interfere with the findings of the trial court in this regard. Hence, it is held that the Ortho Doctor has no right to determine the disability for Kidney. By calculating so, the claimant is entitled to Rs.95,305/- (Rs.3,000/- x 60/100 x 211.79 x 25/100) towards compensation. Accordingly, the substantial questions of law are answered.
6.In the result, this Civil Miscellaneous Appeal is partly allowed. The claim awarded by the tribunal is enhanced to Rs. 95,305/-. The 2nd respondent is directed to deposit a sum of Rs. http://www.judis.nic.in 6 47,652/- and the 3rd respondent is directed to deposit a sum of Rs. 47,653/- before the Deputy Commissioner of Labour, Tirunelveli, within a period of four weeks from the date of receipt of the order copy, less the amount already deposited. On such deposit, the appellant/claimant is entitled to withdraw the modified award amount of Rs.95,305/- forthwith by filing necessary petition.
29.01.2021 Index:Yes/No Internet:Yes/No er To, The Deputy Commissioner of Labour, Tirunelveli.
http://www.judis.nic.in 7 T.KRISHNAVALLI.J er C.M.A(MD)No.27 of 2015 29.01.2021 http://www.judis.nic.in 8 http://www.judis.nic.in