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2010 DIGILAW 489 (MAD)

S. v. Patchayappan VS N. Sridhar Mahendran

2010-02-03

S.MANIKUMAR

body2010
Judgment :- 1. Aggrieved by the dismissal of the Claim Petition filed under the Workmen’s Compensation Act, the claimant has preferred this Appeal. 2. It is the case of the appellant/claimant that the first respondent, who had taken a contract of building extension/construction of a house belonging to the second respondent, engaged him for centering work of the construction. On 30.03.2000 at 08.30 Hrs, while he was removing the centering sheet under the directions and supervision of the first respondent, the Concrete slab of the roof measuring 15’ x 2.5’ area fell on him, crushing his left leg and caused injuries on his hand. Thereafter, he was rushed to the Government Hospital by the respondents and admitted in a serious condition. He was hospitalised for six months and undergone a surgery. Steel plates and rods were fitted to fuse the fractured bones. Again, he was admitted in the hospital for surgery. As a result of the accident, his left leg was totally damaged and he became permanently disabled and his disability was assessed at 45%. As he is the sole breadwinner of the family and having lost his Earning Capacity, he has filed an Application before the Commissioner for Workmen Compensation. 3. Resisting the claim, the first respondent, in his counter affidavit, has submitted that he was never a contractor or maistry dealing with the construction work. He also denied the engagement of the claimant/appellant for putting up any centring work. It is also his further contention that he was not aware of any construction activity taken by the second respondent. He has denied the accident. 4. The second respondent in his counter affidavit, has submitted that he has no property at all to construct building with Chengalpattu Municipality. According to him, at the time of accident, he was a watchman, earning Rs. 1,200/-. He has no means to construct any building. He has denied the contention that the first respondent was engaged as a contractor to do building, extension/construction of any house. The other contentions raised in the Petition for compensation, were also refuted. 5. On analysis of the pleadings and the materials, the Commissioner for Workmen Compensation, Chennai, framed two issues for consideration: (i) Whether the appellant sustained any injury? (ii) Whether the appellant was a workmen under the definition of the of the Workmen’s Compensation Act, working under the Opposite Party No.1? 5. On analysis of the pleadings and the materials, the Commissioner for Workmen Compensation, Chennai, framed two issues for consideration: (i) Whether the appellant sustained any injury? (ii) Whether the appellant was a workmen under the definition of the of the Workmen’s Compensation Act, working under the Opposite Party No.1? (iii) Whether the accident took place in the course of employment under the opposite party and whether he is entitled for compensation? 6. The claimant examined himself as WW.1 and reiterated the averments made in the Claim Petition. To corroborate his version, one Mr. Ashok Kumar was examined as WW.2, who has deposed that he worked with the first respondent/opposite party No.1 between 1998 and March’ 2000 and at the time of accident, the appellant was also working with him. He has also deposed that the accident had occurred when centring work was undertaken in the house of the second opposite party/second respondent. 7. Per contra, the first respondent/opposite party No.1 has deposed that he was working only as a Mason on daily wage basis and only after the institution of the Petition before the Free Legal Aid Centre at Chengalpattu, he came to know about the allegations levelled against him. In the in the cross-examination, he has categorically denied that he had undertaken any construction work for the second opposite party and that the police did not enquire him at any point of time. The Second respondent/opposite party No.2, in his evidence, has deposed that the first respondent was not engaged for construction work and that he was totally unaware of the accident and the injuries, alleged to have been sustained by the appellant. He has also deposed that the Police did not enquire him about the accident. After analysising the oral and documentary evidence let in by the parties, the Commissioner for Workmen’s Compensation has dismissed the Claim Petition. 8. He has also deposed that the Police did not enquire him about the accident. After analysising the oral and documentary evidence let in by the parties, the Commissioner for Workmen’s Compensation has dismissed the Claim Petition. 8. Referring to Ex.W1, Discharge Summary issued by the Government Hospital, Chengalpattu, Ex.W2-Wound Certificate, Ex.W3-Disability Certificate issued by the Doctor, who examined the appellant, as well as the notices sent by the appellant and the period of treatment undergone by him, learned counsel for the appellant submitted that sufficient evidence has been let in before the Commissioner for Workmen’s Compensation, to prove that the accident occurred on 30.03.2000, when the appellant was engaged by the first respondent to do centring work for the construction of a house belonging to the second respondent/opposite party No. 2. He further submitted that the Commissioner for Workman has failed to consider the supportive evidence of WW.2 in proper perspective and failed to consider the purport to the welfare legislation. 9. According to learned counsel for the appellant, the delay in preferring the Claim Petition was bona fide that he was wrongly advised to approach the Free Legal Aid Centre, Chengalpattu, for redressal and therefore, the same should not be put against him to deny his legitimate claim for compensation. It is also his further contention that the Workmen’s Compensation Act does not contemplate any Police Complaint to prove the claim and in such circumstances, the rival contentions are liable to be rejected. He therefore, submitted that the claim made by the appellant is bona fide and ought to have been entertained by the Commissioner for Workmen Compensation and that he should have recorded a clear finding that the accident had taken place during the course of and arising out of the employment and accordingly, awarded appropriate compensation by applying the formula provided under the Act, taking into account the disability assessed by the Doctor. 10. Per contra, learned counsel appearing for the respondents 1 and 2/Opposite Party Nos. 1 and 2, reiterated their averments made before the learned Commissioner for Workmen’s Compensation and submitted that there is no error or illegality in the impugned award and prayed for dismissal of the Appeal. 11. To maintain a claim under Section 3 of the Workmen’s Compensation Act, 1923, primarily, the claimant has to establish that there is a casual connection between the injury sustained by the workmen and his employment. 11. To maintain a claim under Section 3 of the Workmen’s Compensation Act, 1923, primarily, the claimant has to establish that there is a casual connection between the injury sustained by the workmen and his employment. The link between the employment and the injury can be established only on the basis of legal evidence. In the absence of any such evidence, a statement made in the claim petition alone is not sufficient. Besides, in order to succeed the claim, the claimant has to prove that he sustained “employment injury” arising out of and; in the course of employment. Both the conditions have to be fulfilled before a claim was made under the Workmen’s Compensation Act. 12. The abovesaid legal principles are enunciated in a decision of the Supreme Court in Employees’ State Insurance Corporation v. Francis De Costa, 1997 (1) LLJ 34 . In the said judgment, the Supreme Court held that there must be a casual connection between accident and employment. At paragraph 24 of the said judgment, the Supreme Court has further held that, if a finding is arrived at without pleading or legal evidence the Statutory Authority will commit a jurisdictional error while exercising jurisdiction. 13. In Inter-shoes (P) Ltd., Vellore Taluk v. Thiru. K. Subramani and another, 2009 (1) TN MAC 581: 2009 (5) MLJ 1493 (Mad-NOC), this Court has held that- “the Workmen’s Compensation Act is a welfare legislation, earmarked to offer benefits to the workmen and hence the Court is not insist any strict proof of facts from the employees. But it does not meant that the claimants can remain without showing any material to substantiate their contention. Some convincing materials should be made available on their behalf.” 14. In the light of the legal principles stated supra, let me consider the materials placed before the Labour Commissioner. According to the claimant that he was engaged by the first opposite party/ respondent to do centring work in the house belonging to the second respondent and that he sustained an injury on 30.03.2000, arising out of and in the course of employment. The first respondent/opposite party No.1 has denied the said contention. Besides, it is also his evidence that he came to know about the allegations only when the claimant had approached the free Legal Aid Centre, Chengalputtu. According to him, he was only a mason and not a contractor as alleged. The first respondent/opposite party No.1 has denied the said contention. Besides, it is also his evidence that he came to know about the allegations only when the claimant had approached the free Legal Aid Centre, Chengalputtu. According to him, he was only a mason and not a contractor as alleged. The second opposite party/respondent has also submitted that he was only a watchman in a private concern and that he had not engaged the first opposite party to do any centring work. When both the respondents have denied the engagement of the claimant/appellant by letting in by oral evidence, then it is an oath against oath and in such circumstances, some legal evidence or acceptable materials ought to have teen produced by the claimant to arrive at a finding that the appellant was a workmen. 15. Though Ex-Pi-Discharge Case Sheet shows that the claimant/appellant was admitted in the hospital on 30.03.2000 and thereafter he was discharged. There is nothing to indicate that the claimant/appellant sustained injuries due to an accident, while removing the centring sheet at the residence of the second respondent. Though the appellant had contended that filing of a Police Complaint is not a requirement under the statute for making a Claim Petition, under Section 3 of the Workmen’s Compensation Act, 1923, and having regard to the contention of the appellant that due to the injuries, he was hospitalised for 6 months and a surgery was done for uniting the bones, one would expect that the factum of accident and the cause of injury would be reported to the hospital authorities or to the Police. In the case on hand, the Tribunal has found that there is no whisper in the medical records regarding the alleged accident said to have taken place at the residence of the second respondent. 16. Though the accident is alleged to have occurred on 30.03.2000, legal notices have been sent only on 12.06.2001 and 26.03.2002 after a long delay. The explanation of the appellant that he was wrongly directed to approach the Legal Aid Centre to redress his grievance, instead of filing a Claim Petition before the Labour Commissioner, cannot be countenanced. Eventhough the statute does not contemplate any Police Complaint, corroborative materials to prove that the accident had occurred on 30.03.2000 and that the appellant sustained injuries arising out of and in the course of the employment, are missing. Eventhough the statute does not contemplate any Police Complaint, corroborative materials to prove that the accident had occurred on 30.03.2000 and that the appellant sustained injuries arising out of and in the course of the employment, are missing. There is no concrete material to establish that he was engaged as a workmen under the first respondent and secondly, the appellant has also failed to prove that he sustained injuries during the course of his employment. 17. For the abovesaid reasons, this Court, after going through the materials on record, of the view that the finding recorded by the Labour Commissioner is not perverse,