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2010 DIGILAW 4555 (MAD)

Hansa Estates Private Limited v. Kaliyamoorthy

2010-10-08

C.S.KARNAN

body2010
Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the appellant/respondent against the Order dated 29.12.2004, made in W.C.No.49 of 2004, on the file of the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai, awarding a compensation of Rs.1,13,736/-, failing which together with 12% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/respondent has filed the above appeal praying to set aside order passed by the Tribunal. 3. The short facts of the case are as follows: On 13.05.1999, at about 05.30 p.m. while the petitioner was at work at Hamsa Garden site, Madapakkam, Chengalpattu District as construction worker, at about 15 feet above the ground level, he was electrocuted due to contact with live overhead electric wire and fell down. Due to which, he sustained many fractures on his head and forehead and left claricle. He is disabled and cannot do the job as he was earlier doing. Hence, he has suffered 100% disability. The monthly wages of the applicant amount to Rs.2,550/-. The applicant was aged 40 at the time of the accident. Accordingly, he claimed a compensation of Rs.2,21,000/- together with 12% interest, before the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai. 4. The respondent in their Counter had resisted the claim petition, which reads as follows: "That the petition filed is beyond the period of limitation and hence liable to be dismissed in limine. That the above petition is not liable to be entertained as a bar or exclusion is provided as per Section 53 of the employees State Insurance Act, 1948. That the mandatory notice to be issued under section 10 of the Workmen Compensation Act is not issued within a reasonable time from the date of accident and hence the above petition is not maintainable. That the petitioner has not disclosed that there is any relationship of employer and employee between the petitioner and the respondent and consequently the above petition is not maintainable as against this respondent under the Workmen Compensation Act. That what the petitioner has stated that the petitioner was employed by this respondent on 13th May 1999 on the date of alleged accident and the injury during the course of his employment is highly incorrect and disputed. That what the petitioner has stated that the petitioner was employed by this respondent on 13th May 1999 on the date of alleged accident and the injury during the course of his employment is highly incorrect and disputed. In fact, the petitioner was never employed by the respondent as its employee on the said date. That the petitioner through his advocate, who is also the advocate on record for the petitioner in the above case, 5th May 2000 issued a notice to the respondent stating that he was employed as a construction worker and that on 13th May 1999 at Hansa Garden and he suffered injury and is completely disabled and he could not do the job as he was doing and sought compensation as demanded in the notice, which document has been filed as Document No.2 by the petitioner along with the petition and in response to the said notice, the respondent replied through their advocate on 12th May 2000 denying that the petitioner was not their employee at any point of time and that the said notice was misconceived. That what the petitioner has stated in para 4 of his petition that the notice was served on the opposite party and that this respondent disputed the claim is highly incorrect. In fact, the respondent disputed the relationship of the employer and employee to entertain the demand, which is evidence from the said reply notice which is provisionally marked as document No.3 along with the petition. That the alleged cause of injury sustained on 13th May 1999 at about 5.30 p.m. by the petitioner at the alleged work spot was due to his willful disobedience of the order expressly given for the purpose of securing the safety of workmen is that of the petitioner. That the alleged cause of injury sustained on 13th May 1999 at about 5.30 p.m. by the petitioner at the alleged work spot was due to his willful non wearing of the helmets provided by the Contractor and thereby disregarding of safety measures provided for the petitioner and other similarly placed persons. That the alleged cause of injury sustained on 13th May 1999 at about 5.30 p.m. by the petitioner at the alleged work spot was due to his willful non wearing of the helmets provided by the Contractor and thereby disregarding of safety measures provided for the petitioner and other similarly placed persons. That as per the information of the contractor Mr.Raja, who had employed the petitioner to work at the said site, it was the duty of every workman to wear the helmet provided by the contractor to every workman for the purpose of safety so that in case something falls on their head they could be protected and no inquiry should happen to them. On the date of the accident, the petitioner has willfully disobeyed the order of the contractor by not wearing the helmet at the relevant point of time of the accident and by his willful disobedience and negligence has come into contact with a over head electric wire and fallen down due to the electric shock and thereby sustained injury on the head and in case he had obeyed the orders of the contractor by wearing a helmet at the time of alleged accident, the head injury sustained by him would not have caused to the petitioner at all. Hence, the willful disobedience of the petitioner in disobeying and disregarding to wear the helmet while working at the site has enabled him to sustained the injury complained of and consequently on this account also the petitioner is not liable for the claim made in the petition. That the injury complained of by the petitioner in his petition is neither a permanent or partial injury. That the accident complained of has not occurred on account of a risk which is an incident of the employment of the petitioner and the petitioner himself has sustained the electric shock complained of is by his own imprudent act. That the petitioner is also not sure, who is his employer is and against whom the claim should be made. In fact, two months after the accident, he has approached the Taluk Legal Services Committee, Chidambaram seeking assistance for claiming compensation for the same injury and therein he has mentioned Saravanakumar, Engineer as his employer and whereas after a lapse of a year after the injury he has issued a notice to the respondent as though the respondent is his employer. Further the petitioner is also not sure what his wages are, as in the notice, he states that he is a daily waged employee earning Rs.85/-per day, but whereas in para 3 of the petition he states that his monthly wage is Rs.2,550/-, which is highly inconsistent and shows that the above claim of the petitioner lacks bona-fides. That the age of the petitioner as mentioned in para 3 of the petition is not correct and is disputed. It must put to strict proof to the same. That the claim made by the petitioner is highly unreasonable and excessive as the entire cost of hospitalisation and treatment for the injury sustained by the petitioner has been borne by his employer, the Contractor. That this respondent respectfully submits that the claim of the petitioner is not maintainable as against this respondent and hence the above petition is liable to be dismissed That the above petition is liable to be dismissed for non-joinder of proper and necessary parties to the above petition." 5. The Deputy Commissioner of Labour (Workmens Compensation) had framed the two issues for the consideration namely: (i)Whether the claimant has sustained injuries in the course of employment with the opposite party? (ii)What is the quantum of compensation the claimant is entitled to? And who is liable to pay compensation? 6. On the petitioners side, the claimant was examined as PW1 and Dr.S.K.I.Raji was examined as PW2 and five documents were marked as Exs.P1 to P5 namely Ex.P1-VHS Discharge Summary, Ex.P2-Advocate Notice, Ex.P3-Reply Notice, Ex.P4-Disability Certificate and Ex.P5-X-ray. On the respondents side one Mr.Raja was examined as RW1 and one Saravanakumar was examined as RW2 and sale deeds were marked as Ex.R1 and Ex.R2. 7. The PW1, the claimant, had adduced evidence stating that on 13.05.1999 he was working in the respondents Construction Company M/s.Hansa Estate Private Ltd., While descending down from the building 15 feet high with an iron bound containing construction material, he came in contact with a live electrical wire and as a result he was thrown out onto the ground and sustained injuries on his head and left shoulder. He was taken to the Voluntary Health Centre, Adyar, with the help of Raja, Supervisor, for better treatment. Further, he had undergone treatment for 15 days as an in-patient, now he is unable to walk as before the accident. 8. He was taken to the Voluntary Health Centre, Adyar, with the help of Raja, Supervisor, for better treatment. Further, he had undergone treatment for 15 days as an in-patient, now he is unable to walk as before the accident. 8. RW1, Raja had adduced evidence stating that he was working with one Saravanakumar, Engineer, as mason. The applicant was working under him as a labourer and was paid Rs.100/-per day. When the applicant was doing arch work plastering he fell down, immediately he was taken to the Hindu Mission Hospital, Tambaram for preliminary treatment, thereafter he was referred to Voluntary Health Centre, Adyar, wherein he was an inpatient for some time. After discharge from the hospital, he was entrusted with Rs.1,000/- and sent him to his native place. 9. RW2, Saravana Kumar, had adduced evidence stating that he was entrusted with compound wall and arch work by one Balasubramanian, after completing the said work the applicant had downloaded some materials from the top floor and at this juncture he fell down. Immediately, he was taken to the Hindu Mission Hospital, Tambaram for first aid, thereafter he was admitted at the Voluntary Health Centre, Adyar, wherein he was an inpatient for 5 days. Thereafter, a sum of Rs.25,000/- paid to the hospital. Rs.1,000/-was given to him to proceed to his native place. He further stated that the opposite party had assigned the construction work to one Balasubramanian on contract basis. The opposite party had stated in his objection that the applicant did not use the protective safety wear, hence the negligence is on his part. 10. On recording the evidence of RW1 and RW2, the accident had occurred in the course of employment as such the applicant was covered by the Workmens Compensation Act. Against the evidence from both sides, the Deputy Commissioner fixed the income of the injured employer as Rs.2,000/- per month, his age was 38 years. 11. PW2, Dr.Raju had adduced evidence stating that he had examined the injured employee on 23.09.2004 and stated that the applicant sustained injuries on his head and left shoulder, his left eye. Further, his skull was fractured and blood was oozing out. He assessed the disability at 50%. 12. 11. PW2, Dr.Raju had adduced evidence stating that he had examined the injured employee on 23.09.2004 and stated that the applicant sustained injuries on his head and left shoulder, his left eye. Further, his skull was fractured and blood was oozing out. He assessed the disability at 50%. 12. After considering the evidence of the both parties and documents marked as exhibits, the Deputy Commissioner of Labour (Workmens Compensation) had awarded a compensation after adopting the multiplier formula ie.(60/100 X Rs.2,000/- X 189.56 X 50/100) Rs 1,13,736/- as compensation to the petitioner, failing which together with interest at the rate of 12% per annum from the date of filing the claim petition till the date of payment of compensation. Accordingly ordered. 13. Challenging the said award, the appellant has filed the above appeal to set aside the order passed in W.C.No.49 of 2004, on the file of the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai. 14. The learned counsel appearing for the appellant argued that the application itself is not maintainable as per Section 2(N) of the Workmens Compensation Act. In this case, the employer and the employee relationship was not prevailing between the applicant and the opposite party. The opposite party was only power of attorney holder for the holder of the land concerned. There was no findings that the opposite party paid any salary to the applicant, no criminal case was registered in the said accident. The opposite party has not engaged the applicant as his employer. The RW1 and RW2, who are the immediate employer and principal employee of the applicant. As such, the opposite party/appellant is not liable to pay any compensation. Supporting his case, the learned counsel has filed disability certificate, two sale deeds, advocate notice and reply notice including medical records. Besides the Taluk Legal Service Committee sent a letter to Saravana Kumar, who was the employer of the applicant. So, the learned counsel specifically argued that the applicant initially initiated legal action against the immediate employer, Saravanan, who also defrayed the medical expenses and other conveniences to the applicant. Further, the learned counsel argued that the respondent was not employed by the appellant on the date of the accident and the learned Commissioner for Workmens Compensation has wrongly concluded that the DW1 and DW2, who are the immediate employer and principal employer of the respondent. Further, the learned counsel argued that the respondent was not employed by the appellant on the date of the accident and the learned Commissioner for Workmens Compensation has wrongly concluded that the DW1 and DW2, who are the immediate employer and principal employer of the respondent. In support of his contentions, the learned counsel cited the following Judgments made in (2008) 6 MLJ 338 , New India Assurance Co., Ltd., vs. S.Sujatha and Others, the relevant head notes of which are as follows: "Workmens Compensation Act (8 of 1923), Sections 2(1)(n), 3(1) – Issue as to employer – employee relationship – Father said to be the employer of son – No documentary evidence produced – Oral evidence not sufficient – Has to be proved by sufficient documentary evidence – Award passed by Tribunal to be set aside – Civil Miscellaneous Appeal allowed." AIR 2008 SC 2143 , Om Parkash Batish v. Ranjit Kaur, the relevant head notes of which are as follows: "(A) Workmens Compensation Act (8 of 1923), S.30 – Appeal – Substantial question of law – It will carry the same meaning as is commonly understood – No distinction can be made between a substantial question of law for purpose of first appeal and one for second appeal. (B) Workmens Compensation Act (8 of 1923), S.30 – Appeal – A right of appeal under the Act is provided, both to management as also workman – It can not be said that, whereas for workman High Court shall exercise a wider jurisdiction but in event the employer is appellant, its jurisdiction would be limited. (C) Workmens Compensation Act (8 of 1923), S.23 – Proceedings before commissioner – Procedure – Provisions of Code of Civil Procedure or of Evidence Act are not applicable – Commissioner could lay down his own procedures – He could, for purpose of arriving at truth, rely upon such documents which were produced before it. (D) Workmens Compensation Act (8 of 1923), Ss. (D) Workmens Compensation Act (8 of 1923), Ss. 30, 2(n) – Appeal against order of Commissioner – Substantial question of law – Respondent suffered serious injury when he came in contact with live wire in appellants building – He was not working with appellant – It was case of pure and simple accident – Respondent would not be "workman" only because he was working in connection with appellants building activity – High Court wrongly proceeded on basis that appreciation of evidence also would give rise to substantial question of law and held appellant liable to pay amount of compensation – Impugned order is liable to be set aside." 15. The learned counsel appearing for the respondent argued that the entire construction of the building belongs to the appellant under whom RW1 and RW2 and respondent had worked. The accident had happened in the course of employment at the appellants premises. PW1 and PW2 and the respondent are carrying out the construction work for the benefits of the appellant, who is the employer, as such he is liable to pay compensation, since the newly constructed buildings belongs to him. 16. Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the order passed by the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai, this Court is of the view that there is no discrepancies in the said order dated 29.12.2004, made in W.C.No.49 of 2004, on the file of the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai, which is fair and equitable. Further, this Court is unable to find any discrepancy on the issue Nos.1 and 2 decided by the Workmens Commissioner. Therefore, this Court concurs with the same. 17. On 12.12.2005, this Court permitted the respondent/claimant to withdraw the 50% of the amount with accrued interest. 18. As the accident had happened in the year 1999, the claimant is at liberty to withdraw the remaining 50% of the amount together with interest, lying in the credit of the W.C.No.49 of 2004, on the file of the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai, after observing necessary formalities, subject to deduction of withdrawals if any, in accordance with law. 19. 19. In the result, this Civil Miscellaneous Appeal is dismissed and the Order dated 29.12.2004, made in W.C.No.49 of 2004, passed by the Commissioner for Workmens Compensation II and Deputy Commissioner of Labour II, Chennai is confirmed. No costs.