Karnataka High Court
The Oriental Insurance Company ... vs Smt. Rathnamma And Another on 10 January, 2000
Equivalent citations: II(2000)ACC711, 2001ACJ231, [2000(86)FLR330], ILR2000KAR1894, 2000(4)KARLJ182
Author: H. Rangavittalachar
Bench: H. Rangavittalachar
JUDGMENT
1. The Oriental Insurance Company Limited has filed this appeal against the Award of the Commissioner, Workmen's Compensation, Davanagere.
2. Respondent 1-Rathnamma hereinafter referred to as 'claimant' filed a claim application under Workmen's Compensation Act (for short 'the Act') before the Commissioner, Workmen's Compensation, Davanagere, contending her son Kotrappa, hereinafter referred to as 'deceased' for convenience, was working as a coolie under respondent 2, on a monthly salary of Rs. 600/-. On 26-11-1991 the deceased after loading manure to the tractor-trailer belonging to the appellant was travelling in the said vehicle. On account of the rash and negligent driving of the driver of the vehicle, the deceased fell from the tractor, sustained injuries and later succumbed to it. The death occurred in the course of employment and hence prayed for awarding a sum of Rs. 5 lakhs as compensation against the employer.
3. The Commissioner after notice and enquiry has taken the age of the deceased as 12 years and adopting a multiplier corresponding to the Column 16, in Schedule IV has awarded a sum of Rs. 72,401/- as com-
pensation; Since the vehicle in question was insured with the appellant and admittedly the policy was in force, has directed the Insurance Company to pay the same.
4. This order is under challenge by the Insurance Company.
5. Sri S.P. Shankar, learned Counsel appearing for the Insurance Company submitted that under the scheme of the Workmen's Act, the compensation is payable only to the employees who suffer employment injuries or die in an accident if they are or were aged 16 years and above. But the employees who are/were below the age of 16 years, no compensation is payable; Learned Counsel submits that admittedly the injured workman in this case was 12 years when the accident occurred i.e., below the age of 16 years. Therefore Commissioner was not justified in awarding any compensation in this case. To sustain the said argument learned Counsel relied on the entries in Schedule IV of the Workmen's Compensation Act, which provides a Table for payment of compensation to employees who are only 16 years and above and the multiplicant factor is relatable only to the age of the injured workman at the time of the accident.
6. In my opinion this contention is not well-founded.
7. Workmen's Compensation Act is a Social Welfare Legislation, the concept of compensation to be awarded is based on the doctrine of "strict liability". The interpretation of the provisions of the Act, Rules, Schedule, should be made so as to advance the objects of the Act.
8. Section 3 of the Act fixes on every "employer" the liability to pay compensation to his workman, in respect of any injury suffered or death caused to the latter during the course of employment. Relevant portion of Section 3 is extracted for ready reference.-
"3. Employer's liability for compensation.--(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable.-
(a) in respect of any injury which does not result in the total or partial disablement of the workmen for a period exceeding (three) days;
(b) in respect of any (injury, not resulting in death, (or permanent total disablement) caused by) an accident which is directly attributable to-
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an - order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen".
"Workman" has been defined under Section 2(n) as follows:
" "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 the employer's trade or business) who is-
(i) a railway servant as defined in clause (34) of Section 2 of the Railway's Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
(a) a master, seaman or other member of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or, company, as the case may be, is registered in India, or
(ii) employed "either by way of manual labour or" omitted by Act 15 of 1933, Section 2, "in monthly wages not exceeding one thousand rupees", omitted by Act 22 of 1984 in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of (the Armed Forces of the Union) "or of the Royal Indian Marine Service", omitted by A.O., 1937; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them".
9. By a reading of the above, it is clear that either the definition clause of workman or Section 3 categorises a workman on the basis of age for purposes of making the employer liable to compensate nor the language impliedly suggests to exclude a person who is aged below 16 years from the definition. Per contra the definition excludes only two categories of persons they being:
(i) Those employed in the casual labour.
(ii) Those not employed for purposes of employer, trade or business.
10. On the other hand, if the rules and the clauses in the prescribed forms are closely read the same suggests contrary to the argument of the learned Counsel. The prescribed form for filing an application for compensation by a workman is Form No. 8. The relevant portion of the same is extracted for ready reference.
"FORM No. 8APPLICATION FOR COMPENSATION BY WORKMEN To, The Commissioner for Workmen's Compensation. .....
Residing at. . . .
versus Residing at.....
It is hereby submitted that-
(1).....
(2).....
(3) The monthly wages of the applicant amounted to Rs. . . . the applicant is over/under the age of 15 years".
11. A reading of which clearly demonstrates that the intendment of the legislature is to include the persons aged below the age of 15 also under the category of "workman". Therefore, when the provision of the Act does not expressly or impliedly exclude that no compensation is payable to a person who is below the age of 16 years or the definition clause of workman and Section 3 does not make the liability of the employer to be dependent on the age of the workman, the argument if accepted will amount to introducing one more category of persons "workers aged below 16 years" from the exclusive clause of workman which is impermissible.
12. Insofar as reliance placed on Schedule IV is concerned, it has to be stated that Schedule IV only provides the rates of compensation to be paid to a workman who sustain employment injury or dies. The age factor is mentioned only for the purpose of linking the percentage of monthly wages to the age of the workman at the time of death by taking into consideration minimum standards of social security the period of service etc. On these factors the maximum compensation in any given case payable is fixed and age factor mentioned is only relatable for purposes of calculating the maximum compensation. Schedule IV in no way controls the definition clause is Section 3. Therefore not much of assistance can be drawn from Schedule IV to support the argument of the learned Counsel. Another important factor though not germane to the context requires to be noticed is that the law always tends to protect the interest of minor in all fields including the law of contract wherein the accepted principle is though a contract with a minor is void inasmuch as, a contract against a minor is not enforceable, it is always open for a minor to enforce such a void contract if it is to his benefit. If the general legal intendment recognized is always to protect the interest of the minor, it is hard to accept that when a person below the age of 16 years suffers an employment injury/or dies in the course of employment, is not entitled for compensation.
13. At this stage, learned Counsel submitted that under the Child Labour (Prohibition and Regulation) Act, 1986, a child is prohibited from being employed. I do not think that any assistance can be drawn from the said provisions.
14. A reading of the provisions of the Child Labour (Prohibition and Regulation) Act, 1986 in no way helps the contention of the appellant. The Act only prohibits employment of child labour in certain industries set out in Part A and Part B of the Schedule. But in respect of industries other than Parts A and B, the Act permits a child to be employed. Any employer who violates the provisions of the Act is liable to be punished. The right to get compensation is traceable to the provisions of the Workmen's Compensation Act and not the Child Labour (Prohibition) Act and the same is not controlled by the Child Labour (Prohibition and Regulation) Act, 1986; Per contra prohibition under the Child Labour Prohibition Act can only mean that if the employer employs child labour contrary to the prohibition he is not merely liable to pay compensation but is also subject to suffer the penalty stated under the Act.
15. For the reasons stated above, this appeal is liable to be dismissed and dismissed accordingly. No costs.