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2001 DIGILAW 38 (KER)

Kunjoonjamma Daniel v. K. S. E. B.

2001-01-16

J.B.KOSHY, R.RAJENDRA BABU

body2001
Judgment :- J.B. Koshy, J. Appellants herein are the dependants of deceased Mathai Daniel. He was a retired worker of the Electricity Board. After his retirement he was entrusted to do petty works. He was a petty contractor for definite items of work. While doing maintenance of an electric post, on 29.5.1991, the electric post was broken and he fell down and sustained fatal injuries. Dependants of the deceased claimed workmen's compensation. The fact that while doing the electric line maintenance work he fell down and sustained fatal injuries is not disputed. The sand taken by the Electricity Board before the Workmen's Compensation Commissioner was that he was not a workman as defined under the Workmen's Compensation Act as he was an independent contractor. Ext. Dl is the quotation for the work he was doing. Ext. D2 is the work order awarding contract to the deceased to do the maintenance for 400 metres of line. He has to do it personally by himself under the supervision of the Electricity Board Officials. Before filing application for compensation appellants issued a lawyer notice and in reply to that by Ext. D4 they were informed that since he was a petty contractor Board is not liable to pay compensation. So the only question to be considered is whether the deceased was a workman as defined under the Workmen's Compensation Act when he met with the accident. 2. S.2(n) of the Workmen's Compensation Act defines a. "workman" 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" The above section shows that even if the employment is of casual nature, if the employment is for the purpose of employer's trade or business, one is a workman as defined under the Act. The Workmen's Compensation Act is a social welfare legislation and it has to be interpreted in favour of the beneficiary concerned in the case of ambiguity. In this case, DW1 who was examined for the Board admitted that the deceased was doing work under the supervision of employees of the Electricity Board. On the basis of the contract for work or work order he was doing the work. It shows that as per the directions of the Electricity Board he was doing the work. In this case, DW1 who was examined for the Board admitted that the deceased was doing work under the supervision of employees of the Electricity Board. On the basis of the contract for work or work order he was doing the work. It shows that as per the directions of the Electricity Board he was doing the work. It is not a case that for carrying out the contract he was engaging other workers. Even if a worker is engaged by the contractor, the liability is fastened with the principal employer in view of S.12(1) of the Workmen's Compensation Act as held by a Division Bench of this Court in Malankara Rubber and Produce Co. Ltd. v. Hameed & Ors.(2000 (2) ILR Kerala series 672) (decision rendered by one of us Rajendra Babu, J.). 3. The question whether one is a workman or an independent contractor was considered by the Supreme Court as early as in 1957 in Dharangadhara Chemical Works Ltd. v. State of Saurashtra ((1957) SCR 152). In that case the question arose whether a person is an independent contractor or workman as defined under the Industrial Disputes Act. Certain persons were employed for manufacture of salt by the licensees. The salt was manufactured by a class of professional labourers known as agarias from rain water that got mixed up with saline matter in the soil. The work was seasonal in nature. After the work the agarias left for their own villages. The demised lands were divided into pattas and each plot was allotted to the same agarias every year. At the end of such season the accounts were settled at the rate of 5 anas 6 paise per mound. The contention raised by the employer was that agarias are only independent contractors and not workmen. The Industrial Tribunal held that they are workmen as they are working under the supervision of the employer and at the maximum they can be called as 'piece rated workmen'. The finding of the Industrial Tribunal was upheld by the Supreme Court in the above case. 4. In Hussainbhai v. the Alath Factory Tezhilali Union & Ors. (AIR 1978 SC 1410) the Supreme Court held that where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. 4. In Hussainbhai v. the Alath Factory Tezhilali Union & Ors. (AIR 1978 SC 1410) the Supreme Court held that where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, it is found that real employer is the Management. The Supreme Court also found as follows: "6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off." Almost identical case came before the Madhya Pradesh High Court in 1992 ACJ MP 160. There the Court held that when a person contracts to do the work and as per contract he himself does the work, while doing such work, he is a workman as defined under the Act. 5. Here the only question is whether the deceased was a workman as defined under S.2(n) of the Act so as to get compensation to the fatal injuries. It is not disputed that while doing the work for the Electricity Board as per the petty contract given to him and while carrying out the work by himself under the supervision of the Electricity Board officials he met with the accident. Therefore, he was a workman as defined under the Act and was entitled to compensation. 6. There is no definite evidence regarding the monthly earning of the workman. As per Ext. D2 work order he was entitled to get Rs. 375/- for maintenance of 400 metres of line. He was doing the work regularly but there was no evidence regarding actual income earned by him. He reached the age of 57 at that time. Therefore, in the absence of evidence, we are of the opinion that he is entitled to get only the minimum compensation as fixed under the Act. 375/- for maintenance of 400 metres of line. He was doing the work regularly but there was no evidence regarding actual income earned by him. He reached the age of 57 at that time. Therefore, in the absence of evidence, we are of the opinion that he is entitled to get only the minimum compensation as fixed under the Act. The minimum compensation fixed under the Act during the time of accident was Rs. 20,000/-. The Electricity Board is, therefore, directed to pay the above amount of Rs. 20,000/- with 6% interest from the date of accident till the date of deposit. The appeal is allowed to the above extent.