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2008 DIGILAW 751 (MAD)

Valli & Others v. Sidhan & Others

2008-02-29

R.BANUMATHI

body2008
Judgment :- Being aggrieved by the Order of Deputy Commissioner of Labour, Salem, dismissing their Claim Petition for the death of deceased Kunjupaiyan, wife, children and mother of the deceased have filed this Appeal. 2. The case of the Appellants as set out in the Claim Petition is as follows:- The Appellants are the Dependants and Legal Heirs of the deceased Kunjupaiyan. The Respondents 1 to 5 are the owners of the well situated in S.No.602/2 of Elampillai Village. On 18.03.1996, the 5th Respondent approached Kunjupaiyan to retrieve the wooden plank ("Thoranapalagai"), which has fallen in the well. Kunjupaiyan was offered a sum of Rs.30/- for the said work. Kunjupaiyan in order to retrieve the wooden on 18.03.1996 at 11.00 a.m. dived into the well. Accidentally, he got struck in a cave situated inside the well and died. Stating that the accident occurred during the course of employment under the Respondents, Claimants have filed Petition U/s. 3 and 4 of Workmens Compensation Act, claiming compensation of Rs.1,50,000/-. 3. Opposing the Claim, Respondents 1 to 4 have filed counter denying engaging of the deceased for any work. According to Respondents 1 to 4, they are working as Coolies and they are not doing any agricultural operations and there is no sufficient water in the well. It was further alleged that they never requested the deceased to take the wooden plank from the well and that only 5th Respondent alone is responsible for the death of Kunjupaiyan. 4. Fifth Respondent, who is none other than brother of Respondents 1 to 4 has filed counter contending that he had not engaged the deceased to take the wooden plank from the well. According to the 5th Respondent, only Respondents 1 to 4 had directed the deceased to lift the wooden plank ("Thoranapalagai") from the well and the deceased dived into the well under the influence of alcohol. The accident did not occur during the course of employment under the 5th Respondent and therefore, 5th Respondent is not liable to pay any compensation. 5. Before the Deputy Commissioner, First Claimant examined herself as P.W.1. Brother of the deceased was examined as P.W.2. Exs. P.1 to P.4 were marked. On the side of Respondents, 5th Respondent was examined as R.W.1. 5. Before the Deputy Commissioner, First Claimant examined herself as P.W.1. Brother of the deceased was examined as P.W.2. Exs. P.1 to P.4 were marked. On the side of Respondents, 5th Respondent was examined as R.W.1. Upon consideration of oral and documentary evidence, Tribunal held that the deceased Kunjupaiyan is not a "Workman" within the meaning of Section 2 (1)(n) of Workmens Compensation Act. The Deputy Commissioner has further held that the alleged employment, viz., to lift the wooden plank would not fall within the purview of Items (xxxix), (xl), (xli) of the Schedule II. Holding that the deceased was not a "Workman" within the meaning of Section 2(1) (n), the Deputy Commissioner of Labour, dismissed the Claim Petition. 6. Challenging the impugned Order, the learned counsel for the Appellants-Claimants Mr. D. Shivakumaran has submitted that the learned Deputy Commissioner has failed to consider Item (xlii) of the Schedule II and the lifting of wooden plank would squarely fall under Schedule II Item (xlii). The learned counsel has further submitted that even assuming that the employment of the deceased was casual in nature, the word "casual" must be given beneficial meaning. Placing reliance upon 1996 (I) LLJ 1027 (Modieen v. Gopalan) and 2003 ACJ 166 (Babulal v. Jagtap Singh), it was submitted that even if the employment is casual in nature, it is not enough to push the deceased out of the ambit of definition of "Workman". The learned counsel has further submitted that the inter se dispute between the Respondents 1 to 5, as to who employed the deceased cannot be the ground for disallowing the compensation. 7.Reiterating the averments in the counter, the learned counsel for the Respondents 1 to 4 has submitted that only 5th Respondent has engaged the deceased and therefore, Respondents 1 to 4 are not liable to pay compensation. It was further submitted that the deceased being only a Coolie and a casual labourer, he would not fall within the meaning of Section 2(1)(n), so as to entitle the Claimants for compensation. It was further submitted that the deceased being only a Coolie and a casual labourer, he would not fall within the meaning of Section 2(1)(n), so as to entitle the Claimants for compensation. Placing reliance upon (2006) 1 SCC 377 (Central Mine Planning & Design Institute Ltd. v. Ramu Pasi), it was contended that the Claimants have not adduced any material to show that the Respondents 1 to 4 employed the deceased in connection with the Trade and Business of the Respondents and in the absence of any evidence, Deputy Commissioner has rightly negatived the claim of the Appellants. 8. Submitting that the deceased himself owned lands and there was no necessity for him to work under the 5th Respondent as Coolie, the learned counsel for 5th Respondent has contended that at the most, the deceased could only be a casual worker, and lifting of "Thoranapalagai" cannot be construed as being engaged in connection with Trade or Business of the 5th Respondent and therefore, 5th Respondent cannot be held liable for the compensation. 9.In the light of the contentions, two points arise for consideration : (i)Whether the Deputy Commissioner was right in holding that the deceased was not a workman within the frame work of 2(1)(n) of W.C. Act; (2)Whether the finding of the Deputy Commissioner that the deceased workman was not entitled to any compensation is sustainable ? 10. The first claimant – wife of the deceased (PW-1) and brother of the 1st claimant (PW-2) have consistently stated that the deceased was engaged by the fifth respondent for retrieving "Thoranapalagai", which has fallen in the well, for which the deceased was paid Rs.30/-. While the deceased dived into the well, he got stuck in a cave inside the well and he died due to drowning. Respondents 1 to 4 deny employment of the deceased. According to the respondents 1 to 4, only the fifth respondent had engaged the deceased. Per contra, according to the fifth respondent, only respondents 1 to 4 engaged the deceased and they paid Rs.30/- for taking out the wooden plank which had fallen into the well. According to the fifth respondent, deceased received Rs.30/- and he went to a arrack shop and consumed alcohol and got into the well in a drunken mood and drowned in the well. 11. According to the fifth respondent, deceased received Rs.30/- and he went to a arrack shop and consumed alcohol and got into the well in a drunken mood and drowned in the well. 11. The contradictory stand adopted by the respondents as to who engaged the deceased appears to be only to avoid the liability. Admittedly, respondents 1 to 5 are brothers, who are owning common well in S.No.602/2 of Elampillai Village. Respondents 1 to 5 have equal share in the well and each of them own 40 cents of lands. According to the respondents, lands are kept vacant and they are not carrying on agricultural work. According to the respondents, the lands are remaining fallow for more than five years and therefore, there is no necessity for them to engage the deceased to take out the wooden plank fallen in the well. The contention of the respondents that the agricultural lands remained fallow for more than five years is not substantiated. The respondents have not produced any material like Adangal to show that no crops were raised in the land. Denial of employment of the deceased has no force and in my considered view, the respondents are trying to deny the employment of the deceased only to evade their liability. 12. Assuming that the deceased was employed either by fifth respondent or by respondents 1 to 4, the well being a common well, retrieving of the Thoranapalagai [an instrument used in baling water from the well] is only for the benefit of all the respondents. As per Sec. 2(1)(n) of Workmens Compensation Act "Employer includes any body of persons". The respondents being body of persons are to be construed as Employer of the deceased. 13. The main contention of the respondents is that the deceased was not a workman and even according to the claimants, he was engaged only for the specific work to take out the wooden plank and that his employment was casual in nature and therefore, the deceased was not a workman within the meaning of Sec.2(1)(n) of W.C. Act. 14. For appreciation of this contention, we may usefully refer to the relevant statutory provisions. 14. For appreciation of this contention, we may usefully refer to the relevant statutory provisions. The workman is defined in Sec.2(1)(n) and the relevant portion reads as under :- "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 employers trade or business) ... (i) .... (ii)employed 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 ... " 15. The learned Deputy Commissioner has held that the deceased would not fall under Schedule II Items (xxxix), (xl) and (xli). As pointed out earlier, Thoranapalagai – wooden plank used in baling out/lifting water from the well, which would fall within the ambit of Schedule II Item (xlii). Schedule II Item (xlii) reads:- "Employed in installation, maintenance or repair of pumping equipment used for lifting of water from wells, tube wells, ponds, lakes, streams and the like". Evidently, the employment of the deceased for taking out Thoranapalagai – Wooden Plank from the well would fall within the meaning "Installation or repairing the apparatus for lifting water from the well". As rightly contended by the learned Counsel for the appellant, the learned Deputy Company has failed to consider the case in the context of Schedule II Item (xii). As such, definition under item (xlii) of II Schedule would cover the employment of the deceased. 16.The learned Counsel for the respondent submitted that in any event, the employment of the deceased was of casual nature and there is no material to show that the employment of the deceased was purely a casual nature and he was engaged only on the day of the accident. The learned Counsel for the respondents tried to persuade the Court that the employment of the deceased was purely a casual nature and that he would not fall within the ambit of Sec.2(1)(n) of the Act. Contending that the employment was of casual nature and the deceased was not a workman, the learned Counsel placed reliance upon 1995 ACJ 780 [Thomas v. Babu]. In the said decision, injured was a workman who was engaged for plucking coconuts and he fell down and sustained injuries while plucking coconuts. Contending that the employment was of casual nature and the deceased was not a workman, the learned Counsel placed reliance upon 1995 ACJ 780 [Thomas v. Babu]. In the said decision, injured was a workman who was engaged for plucking coconuts and he fell down and sustained injuries while plucking coconuts. In the said case, the appellant and his wife [alleged to be employers] were working as Clerk and School Teacher respectively and there was lack of evidence to show that they are engaged in trade or business dealing in coconut products. Under such facts and circumstances of the case, Kerala High Court held that the appellants cannot be fastened with the liability to pay the compensation. 17. Another decision relied on by the learned Counsel for the respondent is 2006 (1) SCC 377 [Central Mine Planning and Design Institute Ltd. v. Ramu Pasi and another]. A bare reading of the Workmens Compensation Act would show that the expression "workman" as defined under the Act does not cover a casual worker. In the said decision before the High Court, there was no definite material adduced to show that the claimant was employed for the purposes of employers trade or business. 18. Factual matrix of the above two decisions stand entirely on a different footing. The contention of the respondents that the deceased was a casual worker and not a workman within the meaning of Sec. 2(1)(n) of the Act does not merit acceptance. The expression "casual" means only "just or informal". To fall outside the scope of Sec.2(1) (n) of the Act, casual employment should not be for trade or business of the respondents. In the present case, admittedly, the respondents are agriculturists, who are doing cultivation. The employment of the deceased to retrieve the assessor of baling apparatus fallen in the well would be employment for the purposes of respondents "trade or business". 19. The Division Bench of this Court in the decision in Madurai Dist. Co-op. Spinning Mills Ltd., v. P .Pandian, 1998(3) L.L.N. 416, while considering the scope of Sec. 2(1)(n) of the Act held that so long as there is evidence that the employment of a person is regular even for doing work which may be irregular or occasional, the employment cannot be construed to be casual. Co-op. Spinning Mills Ltd., v. P .Pandian, 1998(3) L.L.N. 416, while considering the scope of Sec. 2(1)(n) of the Act held that so long as there is evidence that the employment of a person is regular even for doing work which may be irregular or occasional, the employment cannot be construed to be casual. It is further held that the words "a person whose employment is of casual nature" have to be understood to mean that the employment of persons must be of casual nature and not work in which the person employed. While appreciating the facts, namely, engaging a person for construction work even for 15 days in a month and there will be no work for some months and he was doing gardening, the Division Bench found that even such a person has to be construed as a workman. 20. In 1996 (1) LLJ 1027 [Moideen v. Gopalan], observing that the word "casual" must be given its normal meaning, Kerala High Court has held as follows:- "Even assuming that the claimants employment on that day was of a casual nature that by itself is not enough to push him out of ambit of the definition of workman. If a person has to be ousted out of the contours of the definition, the casual nature of his engagement must couple with the succeeding postulate in the definition that such employment should not be for the trade or business of the employer. The word "and" used in the definition is for the conjunction of the two postulates together in one person. No interpretation to make the two postulates disjunctive is warranted in the context. There is a catena of decisions which adopted the said view. [vide Arumugham v. Nagammal AIR 1949 Madras 462; Vinayaka v. Pottiyamma, AIR 1953 Madras 432; Sitharama v. Ayyaswami, AIR 1956 Madras 212; and Ghodaka & Sons v. Mahaboob Sab; 1974 Lab. I.C. 290 – Mysore High Court]. 21.The contention of the learned Counsel appearing for the respondents is that even if deceased was engaged as a workman, he was only a casual labourer for agricultural operations and Sec.2(1)(n) is not attracted and Schedule II to Sec.2(1)(n) also does not include in its definition "agricultural labouers". The deceased having been engaged for retrieving Thoranapalagai falling within the ambit of Schedule II item (xii) cannot be said to be an agricultural labourer. 22. The deceased having been engaged for retrieving Thoranapalagai falling within the ambit of Schedule II item (xii) cannot be said to be an agricultural labourer. 22. As discussed earlier, Sec.2(1)(n) of W.C. Act does not include workers who have been employed in a casual manner. From the definition of the word "Workman" it is seen that any person other than a person whose employment is of casual nature and who is employed otherwise than for the purposes of employers trade or business is a "workman" as per the definition. The work of the claimant cannot be considered to be one of casual nature. Therefore, the contention of the respondents is not tenable. As the deceased was employed in lifting out Thoranapalagai, which is used for lifting of water from the wells, employment of the deceased would fall within Item (xlii) of schedule II, which makes the deceased as a workman. 23. Consistent evidence of P.W.s 1 and 2 would show that deceased was engaged for lifting of the Thoranapalagai which had fallen in the well and while trying to retrieve the same, the deceased died during the course of employment. When the death arose out of and in the course of employment, the learned Deputy Commissioner ignored the material evidence on record. If the materials on record had been ignored, or analyzed perfunctorily and conclusions drawn contrary to the materials on record, in my considered view, it is a fit case for setting aside the order of the learned Deputy Commissioner. Materials on record would reasonably lead to the fact that the employment of the deceased would fall within item (xlii) of Schedule II. The learned Deputy Commissioner has not taken into consideration materials placed on evidence. Ignoring materials on record and misreading of evidence would constitute a substantial question of law, calling for interference. 24. At the time of death as per Ex.P-2, the deceased was aged 35 years. The relevant factor to the age 35 is 197.06. As per the evidence of P.W.s 1 and 2, the claimant was paid Rs.30/-, which means Rs.1,500/-p.m. Compensation payable to the claimants is Rs.1,500 x 197.06 x 50/100= Rs.1,47,787.50 [Rounded upto Rs.1,50,000/-]. The above amount is payable with interest @ 12% p.a. from the date of order in W.C.No.60/1997 i.e. 03.05.2001. 25. The order of the Deputy Commissioner, Salem, in W.C.No.60/1997 dated 03.05.2001 is set aside and this appeal is allowed. The above amount is payable with interest @ 12% p.a. from the date of order in W.C.No.60/1997 i.e. 03.05.2001. 25. The order of the Deputy Commissioner, Salem, in W.C.No.60/1997 dated 03.05.2001 is set aside and this appeal is allowed. It is held that the respondents 1 to 5 are jointly and severally liable to pay compensation of Rs.1,50,000/- with interest @ 12% p.a. from the date of the order in W.C.No.60/1997 i.e. from 03.05.2001.