Madras High Court
The Oriental Insurance Company Limited vs Murugan .. 1St on 20 June, 2008
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/06/2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.M.A.No.343 of 2004 and C.M.P.No.2500 OF 2004 The Oriental Insurance Company Limited, Theni. .. Appellant/2nd Respondent Vs 1.Murugan .. 1st Respondent/Petitioner 2.Rengaraj .. 2nd Respondent/1st Respondent Prayer Appeal filed under Section 30 of the Workmen's Compensation Act, against the award dated 05.12.2003 passed in W.C.No.176 of 2002 by the Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul. !For Appellant ... Mr.K.Bhaskaran ^For Respondents ... Mr.M.Ajmal Khan for R.1 No appearance for R.2 :JUDGMENT
This Civil Miscellaneous Appeal is preferred by the appellant/second respondent/Oriental Insurance Company, aggrieved against the award dated 05.12.2003 passed in W.C.No.176 of 2002 by the Workmen's Compensation Commissioner/Tribunal, Dindigul.
2. The Workmen's Compensation Commissioner, on appreciation of oral and documentary evidence has passed an award on 05.12.2003 granting a sum of Rs.1,43,015/- (Rupees One Lakh Forty Three Thousand and Fifteen only) as compensation together with interest at 9% p.a. from the date of accident till date of payment and as directed the appellant/second respondent to pay the same within thirty days from the date of receipt of the copy of the award.
3. The facts leading to the filing of the present appeal are as follows:
The first respondent/petitioner has filed the claim petition stating that on 09.06.2002 at about 17.30 hours, he loaded mangoes in the tractor bearing Registration No.TN-59-Z-1487, belonging to the second respondent/first respondent and when tractor came out from the grove after loading mangoes, the driver of the tractor Balamurugan, S/o.Pitchai, drove the said tractor in a rash and negligent manner, as a result of which the claimant fell down from the trailer and sustained fracture injuries on his right thigh and left elbow. A case was registered against the driver of the tractor in Cr.No.211 of 2002 by the Thenkarai Police under Sections 279 and 337 I.P.C. The first respondent/claimant was taken to Periyakulam Government Hospital and he received the treatment from the Doctor. The petitioner was the only breadwinner of his poor family. He was working with the second respondent/first respondent. The accident took place during the course of the employment. The appellant being the insurer and the second respondent/first respondent being the owner of the vehicle are jointly and severally liable to pay compensation of Rs.3,00,000/- (Rupees Three Lakhs only) to the claimant.
4. The appellant/Insurance Company has filed the counter stating that in each and every aspect, the claim petition was vague and incorrect and that the first respondent/claimant was not having any disability to do his earlier work and that he was not entitled to claim any compensation under the Workmen's Compensation Act and that he was not the load man under the second respondent/first respondent and therefore, as the insurer of the tractor, the appellant/second respondent was not liable to pay any compensation and prayed for dismissal of the claim petition with costs.
5. Before the Workmen's Compensation Commissioner/Tribunal, Dindigul, on the side of the first respondent/claimant, witnesses P.W.1 and P.W.2 were examined and Exs.P.1 to P.7 were marked and on the side of the respondents, no witness was examined and no documents were marked.
6. The following substantial questions of law were framed by this Court at the time of admission of this Civil Miscellaneous Appeal:
(1) Whether an action under the Workmen's Compensation Act can be properly found without establishing that the injury sustained was in the course of or out of employment?
(2) Whether the applicant was entitled to any compensation under the W.C.Act in the absence of any proof that he was a workman under the first opposite party?
7. Heard the learned Counsel for the appellant and the first respondent.
8. Finding on the substantial question of law No.(1):
The learned Counsel for the appellant/Insurance Company urges that the Commissioner/Tribunal should not take into account of the fact that the first respondent/claimant had sustained only simple injuries as evidenced by Ex.A.1, F.I.R and Ex.A.3, extract of accident register and Ex.A.4, the judgment of the criminal Court in S.T.No.5074 of 2002 and that the Commissioner/Tribunal should have disbelieved the evidence of P.W.2, Dr.Vijayakumaran, inasmuch as no old X- ray corresponding to the fracture was marked to prove the disability and that the Commissioner/Tribunal should have held that the first respondent/claimant was not a workman and therefore, he cannot make a claim for compensation and hence, prays for allowing the appeal to prevent the miscarriage of justice.
9. P.W.1, Murugan/first respondent/claimant, in his evidence has deposed that he was working in his employer second respondent/first respondent's mango garden/grove and on 09.06.2002, he plucked the mangoes and was bringing the same in the tractor owned by his employer, second respondent/first respondent and at about 12.00 noon, when the tractor was nearing water tank, the tractor capsized since the same was driven in a high speed and that along with him, Panaiadiyan, Siva and Ramakrishnan came in the said tractor and as a result of the accident, he suffered fracture on his right thigh, abrasions on left hand and that he used to walk with the help of the stick and that he received treatment as an inpatient at the Periyakulam Government Hospital and also took native treatment at Poosanampatti and that the driver of the tractor was responsible for the accident.
10. At this juncture, it is relevant to point out that P.W.1/claimant in his cross-examination has categorically stated that from morning to evening, he has worked in the garden/grove and that he used to do work also in the tractor as load man and that his monthly salary is Rs.2,000/- and daily batta is Rs.10/- and that he is not presently employed.
11. P.W.2, Dr.Vijayakumaran in his evidence, has stated that on 30.09.2003, he examined the first respondent/claimant and assessed the partial permanent total disability at 39% as per Ex.P.5 and that it is correct to state that in the wound certificate, nothing has been mentioned about the bone fracture, but in X-ray, there is a bone fracture and in the wound certificate, there is no opinion given about the injuries.
12. It cannot be gainsaid that the Workmen's Compensation Act is a welfare piece of legislation and its aim is to provide compensation expeditiously for the injuries or death sustained by the Workman either to him or his family members. Section 3(1) of the Workmen's Compensation Act, refers to the employer's liability for compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment. The said section also refers to certain contingencies in and by which the employer is not liable to pay compensation. As per Section 4-A of the Act, the compensation is payable as soon as it has fallen due. Normally, the compensation is payable when the injury is caused. Only when the liability is in dispute, after adjudication by the Commissioner/Tribunal, the compensation necessarily has to be deposited. No wonder, the Workmen's Compensation Act is confined to workman as defined under the said Act.
13. On a perusal of Ex.A.1, F.I.R, it is evident that in Cr.No.211 of 2002, a case under Sections 279 and 337 I.P.C has been registered on 09.06.2002 by the Tenkarai Police, whereunder the complainant is Murugan who figures as the first respondent/claimant in the case. In fact, the first respondent/claimant as complainant in Ex.A.1, F.I.R, has clearly mentioned about the manner and happening of occurrence and further, he has clearly stated that on 09.06.2002, four of them were travelling in the tractor bearing Registration No. TN-59-Z- 1487 carrying mango load, while coming to Periyakulam, outside the grove, the driver of the tractor Pitchai S/o.Balamurugan, 26/02, drove the tractor in a high speed and negligently, as a result of which he fell down from the trailer etc.
14. It is not out of place to make a mention that the first respondent/claimant in his evidence has specifically stated that every year, during mango season, he used to work in the mango grove of one Rengaraj (second respondent/first respondent) of V.R.P.Naidu street and in fact, he has mentioned about the three co-workers namely, Panaiadiyan, Ramakrishnan and Siva who came in the said tractor at the time of the occurrence. Therefore, the evidence of the first respondent is quite natural and convincing about the manner and happening of occurrence. Further, he has mentioned about his employer's name as Rengaraj in Ex.A.1, F.I.R who figures as second respondent in the appeal. As far as the present case is concerned, the second respondent/first respondent, owner of the tractor has not examined himself before the Commissioner/Tribunal as a witness to discredit or rebut the evidence of the first respondent/claimant. As a matter of fact, the burden of proving that the first respondent/claimant has been excluded from the category of workman is on the employer/second respondent/first respondent and this Court opines that in the instant case, the same has not been discharged by the second respondent/first respondent as an employer. Moreover, this Court is of the considered view that the relationship of master and servant between the parties has been established so as to bring the first respondent/claimant within the category of 'workman' under the Act. Further, the very fact that the first respondent/claimant has deposed in his evidence (cross-examination) that his job is to maintain the grove of the second respondent/first respondent, shows his relationship by contract of service between them, in the considered opinion of this Court.
15. It is pertinent to point out that the word 'and' occurring amidst the words mentioned in bracket in the definition of 'workman' indicates clearly that for taking out a labourer from the category of a workman, both the conditions, i.e. that the employment is of a casual nature and, that employment is otherwise than for the purposes of the employer's trade or business, should be proved. To put it differently, both the limbs of the conditions of exclusion have to be satisfied, in the considered opinion of this Court. In the instant case, it cannot be disputed that the first respondent/claimant has been employed by the second respondent/first respondent for the purpose of his job of plucking mangoes and carrying the same as a load man and the mere fact that the first respondent/claimant has lent services as load man, the same cannot be excluded from the definition of 'workman', in the considered opinion of this Court. Moreover, when the second respondent/first respondent has employed the first respondent/claimant, in his grove/garden, on a monthly salary of Rs.2,000/- p.m, as claimed by the first respondent/claimant, then it can safely be held that the first respondent/claimant is a workman. Inasmuch as, the second respondent/first respondent as employer has failed to prove that the first respondent/claimant was not a workman employed in his avocation, then this Court opines that the logical consequence is that the first respondent/claimant is squarely covered under the Workmen's Compensation Act.
16. Since the first respondent/claimant has received injuries and sustained disability of 39% as spoken to by P.W.2, Dr.Vijayakumaran, by the accident arising out of and in the course of his employment as workman/load man, this Court concludes that the injuries sustained by the first respondent/claimant arose out of and in the course of his employment as load man under the second respondent/first respondent and that for maintaining an action in the Workmen's Compensation Act, the relationship between the parties as master and servant has to be necessarily established as a pre-condition, besides the workman to prove that the injury sustained by him has arisen out of and in the course of his employment as load man/workman and as far as the present case is concerned, the above requisites have been established to the satisfaction of this Court and it is also held that without establishing the relationship of master and servant between the parties and without establishing that the accident arose out of and in the course of one's employment, the action under the Workmen's Compensation Act cannot be founded in law and the substantial question of law No.(1) is answered accordingly.
17. Finding on the substantial question of law No.(2):
This Court has held for the substantial question of law No.(1) that P.W.1/claimant is a workman/load man, covered under the Workmen's Compensation Act and therefore, he is entitled to claim compensation for the injuries and the disability sustained by him in the accident which has arisen out of and in the course of his employment. P.W.2, Dr.Vijayakumaran, has assessed the disability of the first respondent/claimant at 39% as evidenced by Ex.P.6, disability certificate. As a matter of fact, the evidence of P.W.1 and P.W.2 are unassailable in the present case. Even though the first respondent/ claimant has deposed in his evidence that he received the salary of Rs.2,000/- p.m from the second respondent/first respondent (employer), there is no satisfactory proof in this regard and therefore, the Commissioner/Tribunal fixing the salary of the first respondent/claimant at Rs.2,768/- p.m, cannot be interfered with by this Court and the same is prudent, fair and equitable too, since the Commissioner/Tribunal has ample power to determine the same.
18. Further, the Commissioner/Tribunal has determined the basic pay of the claimant at the time of the accident as Rs.1,467/- and he has fixed the Dearness Allowance at Rs.1,300.72. The Commissioner/Tribunal for 39% disability sustained by the first respondent/claimant, has determined the disability at 40% towards loss of earning capacity and has adopted the factor of 215.28, while fixing the age of the claimant as 28 for the purpose of arriving at a compensation amount to be awarded and accordingly, has awarded a sum of Rs.1,43,015/- (Rupees One Lakh Forty Three Thousand and Fifteen only) as compensation to be paid by the appellant/second respondent to the first respondent/claimant and the same, in any event, cannot be said to be excessive and exorbitant, in the considered view of this Court and in that view of the matter, this Court holds that the first respondent/claimant is entitled to the aforesaid sum of Rs.1,43,015/- (Rupees One Lakh Forty Three Thousand and Fifteen only) along with interest at 9% p.a from the date of accident till date of payment as compensation under the Workmen's Compensation Act, payable by the appellant/second respondent Insurance Company and the substantial question of law No.(2) is answered accordingly.
19. In the result, the Civil Miscellaneous Appeal has no merits and the same is dismissed in the interest of justice. Consequently, the award dated 05.12.2003 passed in W.C.No.176 of 2002 by the Workmen's Compensation Commissioner/Tribunal, Dindigul, is confirmed by this Court for the reasons assigned in this appeal. The connected Miscellaneous Petition is dismissed. Considering the facts and circumstances of the case, the respective parties are directed to bear their own costs in this appeal.
rsb To The Commissioner for Workmen's Compensation (Deputy Commissioner of Labour), Dindigul.