Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 3965 (MAD)

Shanmugaraj v. Sasikumar

2009-09-30

A.SELVAM

body2009
Judgment :- The order dated 08.07.2002 passed in W.C.No.240 of 1997 by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli is being challenged in the present Civil Miscellaneous Appeal. 2. The respondent herein as petitioner has filed W.C.No.240 of 1997 on the file of the Assistant Commissioner for Workmens Compensation, Tiruchirapalli praying to pass an award of Rs.5,00,000/- in his favour wherein the present appellant has been shown as sole respondent. 3. It is stated in the petition that on 23.03.1997 the petitioner has served as one of the employees of the respondent in threshing machine which belongs to him and the same has been engaged for threshing paddy in the field of one Gunasekaran. During the course of employment of the petitioner, he met with an accident and due to that his right leg below knee has become amputated. The threshing machine by which the accident has happened belongs to the respondent and since the accident has happened during the course of employment of the respondent, the respondent is liable to pay compensation of Rs.5,00,000/- to the petitioner. 4. In the counter filed on the side of the respondent, it is stated that the threshing machine mentioned in the petition does not belong to the respondent and there is no employer and employee relationship between the respondent and petitioner. The respondent has not at all employed the petitioner so as to work as one of the employees in the threshing machine which is said to have involved in the accident. The petitioner is nothing but a agricultural coolie and there is no merit in the petition and the same deserves to be dismissed. 5. The Assistant Commissioner for Workmens Compensation, Tiruchirapalli after analysing the contentions raised on either side, has awarded a compensation of Rs.1,05,576/- in favour of the petitioner. Against the award passed by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli, the present Civil Miscellaneous Appeal has been filed at the instance of the respondent as appellant. 6. The crux of the contention urged on the side of the petitioner is that he served as one of the employees of the respondent in his threshing machine. On 23.03.1997 the petitioner has met with an accident due to the threshing machine of the respondent and thereby he lost his right leg below knee. Under the said circumstances, the respondent is liable to pay compensation as claimed in the petition. 7. On 23.03.1997 the petitioner has met with an accident due to the threshing machine of the respondent and thereby he lost his right leg below knee. Under the said circumstances, the respondent is liable to pay compensation as claimed in the petition. 7. On the side of the respondent it has been contended that the machine mentioned in the petition does not belong to the respondent and further there is no relationship of employer and employee between the respondent and petitioner. 8. The Assistant Commissioner for Workmens Compensation, Tiruchirapalli has awarded compensation of Rs.1,05,576/- in favour of the petitioner. 9. The learned counsel appearing for the appellant/respondent has raised the following points so as to set aside the award passed by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli. .(a) Therespondent is not the owner of the threshing machine mentioned in the petition and further there is no relationship of employer and employee between the petitioner and respondent .(b) As per Rule 28 of the Workmens Compensation Rules, 1924, the Assistant Commissioner for Workmens Compensation, Tiruchirapalli after considering the averments made in the petition as well as in the written statement has to frame necessary issues and after framing necessary issues, he has to answer the same properly. But in the instant case, the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has not followed the mandatory provision of the said Rule. 10. In order to repel the contention urged on the side of the appellant/respondent, the learned counsel appearing for the respondent/petitioner has repeatedly contended that the specific case of the petitioner is that the machine which caused the accident absolutely belongs to the respondent and the petitioner has adduced evidence to that effect on 010. 2001 and eventhough the petitioner has adduced evidence on 010. 2001, various adjournments have been given so as to cross examine him and further after giving sufficient opportunity the respondent has not proved the vital aspects urged on his side. Under the said circumstances the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has rightly passed the award in question in favour of the petitioner and therefore, the argument advanced by the learned counsel appearing for the appellant/respondent is liable to be rejected. 11. Under the said circumstances the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has rightly passed the award in question in favour of the petitioner and therefore, the argument advanced by the learned counsel appearing for the appellant/respondent is liable to be rejected. 11. Basing upon the divergent submissions made by either counsel, the Court has to look into as to whether the award passed in W.C.No.240 of 1997 by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli is perfectly correct or it requires interference. .12. In the petition it has been clinchingly stated that the accident has happened on 23.03.1997 due to threshing machine of the respondent and at the time of accident, the petitioner has served as an employee of the respondent. But on the other hand, in the counter filed on the side of the respondent, it has been specifically stated to the effect that the threshing machine mentioned in the petition does not belong to the respondent and there is no relationship between the respondent and petitioner as employer and employee and therefore, the present petition deserves to be dismissed. 13. The Assistant Commissioner for Workmens Compensation, Tiruchirapalli has come to the conclusion that even though sufficient opportunities have been given to the respondent to adduce evidence on his side, he has not chosen to give the same and therefore, the evidence of the petitioner can be believed in and ultimately the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has come to the conclusion that the respondent is the owner of the threshing machine which caused the accident. 14. At this juncture it would be more useful to look into the provision of Rules 28 and 32 of the Workmens Compensation Rules, 1924. Rule 28(1) reads as follows: .“28. Framing of issues.-(1) After considering any written statement and the result of any examination of the parties, the Commissioner shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.” .15. Rule 32(1) of the said Rule reads as follows: .“32. Judgment.-(1) The Commissioner, in passing orders, shall record concisely a judgment, his finding on each of the issues framed and his reasons for such finding.” 16. Rule 32(1) of the said Rule reads as follows: .“32. Judgment.-(1) The Commissioner, in passing orders, shall record concisely a judgment, his finding on each of the issues framed and his reasons for such finding.” 16. From the cumulative effect of the reading of the said rules, it is easily discernible that after considering the averments made in the petition as well as in the written statement, the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has to frame necessary issues and in the Judgment he has to give proper answer to all the issues. Therefore, a mandatory duty is cast upon the concerned Commissioner for Workmens Compensation used to frame necessary issues on the basis of the rival contentions raised on either side and further he has to answer each and every issue in the Judgment. 17. In the instant case, as rightly pointed out by the learned counsel appearing for the appellant/respondent no proper issues have been framed to the effect as to whether the threshing machine mentioned in the petition belongs to the respondent at the time of accident and also as to whether the petitioner has served as one of the employees of the respondent in the threshing machine mentioned in the petition. Therefore, it is quite clear that the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has flouted the mandatory provisions of the rules 28 and 32 of the Workmens Compensation Rules, 1924. Since the Assistant Commissioner for Workmens Compensation, Tiruchirapalli has flagrantly violated the mandatory provisions of the said rules, it is needles to say that the award passed by him is liable to be set aside and the matter is liable to be remitted to the file of the Assistant Commissioner for Workmens Compensation, Tiruchirapalli. In view of the discussion made earlier, it is very clear that the argument advanced by the learned counsel appearing for the appellant/respondent is really having effect, whereas the argument advanced by the learned counsel appearing for the respondent/petitioner is sans merit. 18. In fine, this Civil Miscellaneous Appeal is allowed without cost. Connected Miscellaneous Petition is closed. The award passed in W.C.No.240 of 1997 by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli is set aside and W.C.No.240 of 1997 is remitted to the file of the Assistant Commissioner for Workmens Compensation, Tiruchirapalli. 18. In fine, this Civil Miscellaneous Appeal is allowed without cost. Connected Miscellaneous Petition is closed. The award passed in W.C.No.240 of 1997 by the Assistant Commissioner for Workmens Compensation, Tiruchirapalli is set aside and W.C.No.240 of 1997 is remitted to the file of the Assistant Commissioner for Workmens Compensation, Tiruchirapalli. The Assistant Commissioner for Workmens Compensation, Tiruchirapalli is directed to follow the mandatory provisions of rules 28 and 32 of the Workmens Compensation Rules, 1924. Both the parties are entitled to adduce additional evidence and further it is directed that W.C.No.240 of 1997 should be disposed of within two months from the date of receipt of copy of this order.