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2009 DIGILAW 1913 (MAD)

T. P. Textiles (P) Ltd. v. K. Jeyaprakash

2009-06-24

N.KIRUBAKARAN

body2009
Judgment : This Civil Miscellaneous Appeal has been preferred by the Management aggrieved by the order of Commissioner under the Workman Compensation act, dated 13. 2008 awarding a sum of Rs.42,567/- (Rupees Forty two thousand five hundred and sixty seven only) to the respondent as against his claim of Rs.2,98,850/- (Rupees Two Lakhs Ninety eight thousand eight hundred and fifty only). 2. The case of the respondent before the Commissioner was that he was employed in the appellant’s mill as a fitter and was earning a salary of Rs.75/- (Rupees seventy five only) per day from May 2003 onwards, on 20.6.2003, while the respondent engaged in cleaning and preparing the machine for work somebody in the mill, without informing to the respondent, suddenly switched on the machine and as a result of the sudden action of the machine’s work, the respondent’s right hand was caught between the gear wheels of the machine and his right hand was crushed. 3. The respondent further contended before the Deputy Commissioner that he was admitted in Jawahar hospital, at Rajapalayam for treatment and due to the grievous injury, the useful right index finger was totally amputated and flexion contracture of right middle finger of right hand. According to the petitioner, because of the accident and because of the injury, the respondent became handicapped for the rest of his life time. Hence, he filed W.C.No.302 of 2004 before the Tribunal. His further contention was that he was earning a sum of Rs.75/- (Rupees seventy five only) per day and because of the accident, his prospects of getting married was spoiled. Since the accident occurred in the course and out of his employment under the appellant, the respondent sued for the compensation of Rs.2,98,850/- (Rupees Two Lakhs Ninety eight thousand eight hundred and fifty only). 4. On the other hand, the appellant contested the case by filing counter before the Commissioner and stated that the respondent/claimant was not their employee and he was only an apprentice without any payment. It was only to oblige his father who was working as watchman in the mill he was appointed as apprentice and hence, he could not be construed as workman and Workmen’s Compensation Act will not be applicable to the facts of the case. Hence, the claim of the respondent had to be dismissed. 5. It was only to oblige his father who was working as watchman in the mill he was appointed as apprentice and hence, he could not be construed as workman and Workmen’s Compensation Act will not be applicable to the facts of the case. Hence, the claim of the respondent had to be dismissed. 5. The Deputy Commissioner under the Act, after perusing the pleadings and evidence, awarded a sum of Rs.42,567/- (Rupees Forty two thousand five hundred and sixty seven only) against which only, the present appeal has been preferred by the Management of the mill. 6. Thefollowing substantial questions of law were framed by this Court: “(a) All the averments in para 1 of the application are wrong. The applicant was not at all recruited as a Fitter, but allowed” to ‘take training under the Fitter. He was never paid wages and he was allowed to learn work without pay. He was just an unpaid Learner and not employed for wages, thus he was not coming under the ambit of ‘workman’ as defined under Section 2(n) of the Workmen’s compensation Act, thereby has no locus standi to make a claim under the said Act. (b) The occurrence as described in the application is totally false. He was not assigned with duty of preparing any device at his own. He did not stop any machine or cleaned, but carelessly he handled a running machine forgetting that he was holding the waste useable for cleaning would be got in between the gears easily and due his negligence the waste entangled with the gear that pulled it alone with his limb. It is an imaginary story to say that he was preparing a machine and while cleaning it somebody switched on without noticing him that resulted in the occurrence. He has not come with truth, but twisted the fact to suit to his taste and it is for him to prove his version with admissible evidence. .(c) With humanity the respondent arranged for proper treatment and the injuries were cured throughly. The injury as described in the application is a falsity and exaggerated with mala fide. No treatment was needed after cure of the wounds. When he admitted he was treated as Jawahar Hospital, Rajapalayam, seeking a Medical Certificate from some where is not admissible nor permissible”. 7. The injury as described in the application is a falsity and exaggerated with mala fide. No treatment was needed after cure of the wounds. When he admitted he was treated as Jawahar Hospital, Rajapalayam, seeking a Medical Certificate from some where is not admissible nor permissible”. 7. The learned counsel appearing for the appellant strenuously submitted that the respondent/claimant will not come under the definition of workmen under Section 2(n) of the Workmen’s compensation Act, 1923 and there is no jurisdiction for the Commissioner to decide the matter, in the absence of employer-employee relationship and according to the appellant company, the W.C.O.P.No.302 of 2004 is not maintainable. The further contention of the learned counsel for the appellant is that irrespective of the fact that whether there exists employee-employer relationship the respondent would not come under the definition of workman as he was not paid any amount by the appellant management. It is further argued that the quantum awarded by the Commissioner is excessive as the respondent/claimant did not prove anything with regard to that. The second point urged is that when the respondent is not considered as a workman, the question of paying any compensation to the claimant does not arise. 8. The learned counsel for the appellant further relied upon Section 3 of the Workmen Compensation Act and contended that if any act has been willfully done by the worker and any injury, was caused to him, the management is not liable to pay any amount. 9. Heard the learned counsel for the appellant and perused the records and the award of the Deputy Commissioner. 10. Though the learned counsel for the appellant denied the accident, the appellant admitted the accident in Para 6 of the counter statement. The contention is that the respondent/claimant will not come under Section 2(n) of the Workmen Compensation Act and the same has no substance in considering the provisions of Apprentices Act, 1961. Sections 2(aa) and 2(aaa) define “apprentice” and “apprenticeship training” thus: “Section 2(aa) : “apprentice” means a person who is undergoing – apprenticeship training in pursuance of a contract of apprenticeship; Section 2(aaa) : “apprenticeship training” means a course of training in any industry or establishment undergone in pursuance – of a contract of apprenticeship and under prescribed terms and conditions which may be – different for different categories of apprentices;” 11. The following statement in para 5 of the counter statement filed by the management would establish that the claimant worked as apprentice and his father requested for job to his son who studied fitter course and was interested in doing works in the mechanical line. As there was no vacancy in any post and Mr. K. Jeyaprakash (claimant) had no previous experience in handling the machineries, he was advised to get training for some time as a trainee, but without wages and to learn works under the guidance of the fitter of the mill. 12. The aforesaid statement would make the claimant to fit into the definition of “apprentice” as defined under Section 2(aa) and also “apprenticeship training” defined under Section 2(aaa). The aforesaid statement in the counter statement would state that there was an agreement between the management and the claimant regarding the training. .13. If an apprentice sustained any injury, the employer is liable to pay compensation for, the injury sustained by him under Section 16 of the Apprentice Act, 1961. Section 16 of the Apprentice Act extracted as follows: .“If personal injury is caused to an apprentice by accident arising out of and in the course of his training as an apprentice, his employer shall be liable to pay compensation which shall be determined and paid, so far as may be, in accordance with the provisions of the Workmen’s Compensation Act, 1923 (8 of 1923), subject to the modification specified in the Schedule”. 14. WhenSection 16 of the Apprentice Act gives right to the claimant to get compensation under the provisions of the Workmen’s Compensation Act, the contention of the learned counsel for the appellant that the claimant will not come under the provisions of Section 2(n) of the Workmen’s Compensation Act and the company is not liable to pay any amount and has got no legs to stand before this Court. Hence, substantial question of law (a) is answered against the appellant, in view of Section 16 of the Apprentice Act, the other contentions of the appellant also have to fail. 15. It is seen from the award, the respondent/claimant sent notice through Exhibit P-1 and for which the appellant sent a reply through Exhibit P-2. Exhibit P-4 is the certificate issued by the doctor to prove the disability sustained because of the accident. Hence, the substantial question of law (b) is answered against the appellant. 15. It is seen from the award, the respondent/claimant sent notice through Exhibit P-1 and for which the appellant sent a reply through Exhibit P-2. Exhibit P-4 is the certificate issued by the doctor to prove the disability sustained because of the accident. Hence, the substantial question of law (b) is answered against the appellant. Taking into consideration the admission made by the management that the accident occurred in the course of employment in the mill, the Deputy Commissioner rightly came to the conclusion that the trainee could not have been an unpaid trainee. Even otherwise, it is very difficult to believe that a person was working with the management as unpaid trainee. It is common knowledge that even a trainee is paid an amount as a stipend for his expenses. .16. Categorical denial by the management that the claimant was an unpaid trainee, would only lead to disbelieve its version. Exhibit P-2 are the vouchers maintained by the appellant management for having paid the amounts to the apprentices. That itself would go to show that the appellant management has been giving training to the apprentices regularly and is the habit of paying amounts to its apprentices and it is maintaining a separate register for apprentices. That itself would defeat the contention of the learned counsel for the appellant that the respondent, though a trainee, is not paid trainee. In any event, the apprentices Act, 1961, does not draw any distinction between paid apprenticeship and non-paid apprenticeship. For the reasons stated above, the claimant would come under the definition “apprentice” under the Apprentices Act and as per Section 16 of the Apprentice Act, the apprentice is entitled to get the benefit of compensation as per the provisions of Workmen’s Compensation Act, 1923. Apart from that, the Commissioner rightly came to the conclusion that the claimant was a workman, as the claimant sustained injury during the course of training in the appellant company. 17. Withregard to substantial question of law (c), the respondent claimant proved through Exhibit P4 disability certificate issued by competent qualified medical practitioner. When the accident was admitted and it was proved that it occurred during respondent’s training, nothing more could be expected from the claimant. The question no (c) is also answered against the appellant. 18. 17. Withregard to substantial question of law (c), the respondent claimant proved through Exhibit P4 disability certificate issued by competent qualified medical practitioner. When the accident was admitted and it was proved that it occurred during respondent’s training, nothing more could be expected from the claimant. The question no (c) is also answered against the appellant. 18. With regard to the quantum, even though the company stated that the respondent was a non-paid employee, Employee’s Register 2 would show that some amount has” been paid as monthly amounts to the apprentices. Hence, the amount fixed by the Deputy Commissioner at Rs.75/-(Rupees seventy five only) per day as his daily wages, is based on evidence only and there is perversity. Based on that the daily wages was fixed as Rs.75/- (Rupees seventy five only) and considering the disability sustained by the respondent the Deputy Commissioner calculated the compensation at the rate of Rs.42,567/- (Rupees Forty two thousand five hundred and sixty seven only) which is reasonable and does not warrant any interference from this Court. 19. In the result, the appeal is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. No costs.