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2012 DIGILAW 1810 (MAD)

Junior Engineer Tamil Nadu v. T. Kumar

2012-04-09

K.SUGUNA

body2012
Judgment :- 1. This appeal is filed as against the order dated 28.05.2008 passed in W.C. Case No.130 of 1997 on the file of the Deputy Commissioner of Labour – I, Teynampet, Chennai 600 018. 2. The facts of this case are that one Suresh Babu, who was employed by the appellant Board as an Electrician in the Head Works, Tesur-Palar Combined Water Supply Scheme which is under the maintenance of TWAD Board, Cheyyar Sub-Section of Maintenance Sub-Division, Tiruvannamalai, met with an accident on 23.12.1996 and died on the spot when he was instructed to put the fuse in the infiltration well which is the source of water supply to the nearby villages; the Fire Service was called to recover the body and the body was recovered only on the next day of the accident i.e., on 24.12.1996; the parents of the deceased moved the Commissioner for Workmen’s Compensation, (hereinafter referred to as “the Commissioner” seeking compensation of Rs.3,50,000/- under the Workmen’s Compensation Act, with interest at the rate of 18% per annum. 3. The above said claim was resisted by the TWAD Board and initially, an order was passed on 24.04.1998 dismissing the said application and the applicants therein filed C.M.A.No.1700 of 1999 on the file of this Court and the said Civil Miscellaneous Appeal was disposed of by this Court by judgment dated 29.06.2007. 4. According to the learned counsel for the first respondent/claimant, the above said Civil Miscellaneous Appeal was disposed of by remitting back the matter to the Commissioner and on remand, the Commissioner, by order dated 28.05.2008, had directed the TWAD Board to pay a compensation of Rs.2,64,823/- to the father of the deceased and as against the same, the TWAD Board has filed the present appeal. 5. According to the learned counsel for the appellant Board, the deceased was working only as a daily-wages employee and that too, he worked only for 22 days, consequently, his parents are not entitled for the benefit of the Workmen’s Compensation Act. The other stand taken by the learned counsel for the appellant Board is that the dependency of the appellants was not established before the Commissioner; consequently, the order passed by the Commissioner has to be set aside. 6. The other stand taken by the learned counsel for the appellant Board is that the dependency of the appellants was not established before the Commissioner; consequently, the order passed by the Commissioner has to be set aside. 6. On the other hand, according to the leaned counsel for the first respondent/claimant, the dependency factor of the first respondent/claimant has been discussed at page no.2 of the order of the Commissioner; the amount of compensation has been arrived at by the Commissioner, after taking into account, the gross income of the first respondent/claimant and also the income which he should receive after deduction towards income tax, i.e., Rs.3564-Rs.1455 = Rs.2109; as per the finding of the Commissioner, since no proof was filed for the wages paid to the deceased, the minimum wages was fixed as per the Minimum Wages Act; that apart, based on the income received by the claimant/dependent, each case has to be decided. 7. In support of the above contention, the learned counsel for the first respondent/claimant has relied on paragraph no.12 of the judgment reported in 2001 (II) LLJ 535 , J.D.P. Associate, Chennai vs. K. Malarodi and another which reads as under: “We now come to the question of lack of pleadings. It is true that the application did not contain any averment regarding dependency. But the appellant raised it as a defence. In the evidence the respondent have demonstrated their dependency. There is no reason to disbelieve the evidence. In Welfare legislation, which are enacted to compensate such poor families for the death or injury caused during and in the course of employment, the Court cannot adopt a nit-picking attitude to defeat the object of the Act. The appellant has not been taken by surprise, they knew the statutory provisions, they raised the defence, the respondents met this with convincing evidence, so the appellant cannot complain. Therefore, the respondents are definitely dependents within the meaning of the Act.” And also paragraph nos.6 and 7 of the judgment of Madhya Pradesh High Court reported in 1995 (1) LLJ 910 , Ramji and another vs. Lalit Kumar Bardiya and Others, which reads as under: “6. …. Therefore, the respondents are definitely dependents within the meaning of the Act.” And also paragraph nos.6 and 7 of the judgment of Madhya Pradesh High Court reported in 1995 (1) LLJ 910 , Ramji and another vs. Lalit Kumar Bardiya and Others, which reads as under: “6. …. He admits that the deceased lived jointly with his parents and other members of the family including his brothers and was being supported by the members of the family with the income, from some extent, from agricultural lands and their individual earnings as labourers on daily wages. In the present state of evidence whether the parents can be held to be dependents of the deceased? In joint families in India, consisting of father and sons if all the claimants are earning members normally the income and expenses are shared. In such situations, each earning member provides support and is also dependent on the other. Indian joint families, there is thus sharing of income and responsibilities. Inter dependence and mutual cooperation alone makes living in joint families possible. Here the deceased workman was employed on fixed wages, but his wages were in arrears and were not paid by the employer till the date of his death. Will it be reasonable to hold that had he received the wages and contributed them to the needs of the family and the members joint with him the other members can be said to be partly dependent on him, but since for want of payment of his wages admittedly due to him, he could not make any contribution to the family and other members, the other members can claim no right of getting support from him? 7. 7. The relevant clause defining the word “dependent” keeping in view the object of the Act and the facts as found here, cannot be assigned a restricted meaning to include in the said expression only such parents who have actually received benefit fully or partly from the earnings of the deceased and to exclude such parents who in natural and normal course would have received such benefit from the earnings of the deceased, but for some act or omission on cause attributable to the employer are deprived of such benefits from the deceased workman.” And also paragraph no.8 of an un-reported judgment dated 20.10.2011 rendered by a Single Judge of this Court in C.M.A. No.408 of 2006, The Commissioner, Dharmapuri Municipality, Dharmapuri vs. Pappa @ Mudhammal and 3 Others, which reads as under: “8. From a reading of Section 2(1)(d) of the Workmen’s Compensation Act, 1923, would indicate that the word “dependent” means and includes a widow and a minor children as sub-section (i). Sub-section (iii)(c) of Section 2(1)(d) would categorically indicate that a parent, other than a widowed mother is also a legal heir if wholly or in part dependent on the earnings of the workman at the time of his death. Therefore, the parents are also entitled to maintain a claim petition. In the evidence also, it was stated that they are dependents of the deceased. The Deputy Commissioner has also taken note of the fact that the parents are without any source of income and they were totally dependent on the deceased for their survival. The appellant has not proved by any oral or documentary evidence that the respondents 1 and 2 are having any source of income. Further, the claimants were not even cross-examined before the Deputy Commissioner of Labour to disprove the claim made by the claimants. Taking into consideration the overall facts and circumstances of the case, I am of the view that it is not now open to the appellant to argue that the claimants are not dependent of the deceased and they are not entitled to maintain the claim petition. Taking into consideration the overall facts and circumstances of the case, I am of the view that it is not now open to the appellant to argue that the claimants are not dependent of the deceased and they are not entitled to maintain the claim petition. Therefore, I hold that the findings of the Deputy Commissioner that the parents are dependents and legal heirs of the deceased is well founded and the first question of law is answered against the appellant.” According to the learned counsel for the respondents, the dependency of the first respondent/claimant is also proved and based on the Minimum Wages Act, wages has been fixed and the quantum is also correspondingly fixed. Based on these submissions, the learned counsel for the first respondent/claimant has sought dismissal of the appeal. 8. The points that arise for consideration in this appeal are as under: i. Whether the first respondent/claimant is entitled for the benefit under the Workmen’s Compensation Act? ii. Whether the quantum awarded by the Commissioner is correct or not? 9. As regards the first point for consideration, it is not in dispute that the first respondent/claimant is the father of the deceased and he was employed with the appellant TWAD Board and had taken voluntary retirement. Under Section 2 of the Workmen’s Compensation Act, as far as parents are concerned, they may be partial dependants or full dependants. As far as the case in hand is concerned, as per the finding of the Commissioner, at the time of accident, the first respondent/claimant was receiving Rs.3,564/- as gross salary. 10. However, according to the learned counsel for the appellant Board, as per the pay certificate dated 27.11.1996 issued to the first respondent/claimant enclosed at page no.6 of the typed set of papers, his income in the application before the Commissioner was taken as Rs.2,109/-. 11. It is not disputed that the accident had taken place on 23.12.1996 and the deceased was an employee of the appellant Board. According to the learned counsel for the appellant Board, the Commissioner had erred in fixing the wages applying the Minimum Wages Act. But, at the same time, the learned counsel for the appellant Board is not disputing the finding of the Commissioner that no document was filed by the appellant Board before the Commissioner to prove the wages of the deceased. But, at the same time, the learned counsel for the appellant Board is not disputing the finding of the Commissioner that no document was filed by the appellant Board before the Commissioner to prove the wages of the deceased. Under such circumstances, the Commissioner, certainly, cannot have any other option but to follow the Minimum Wages Act and accordingly, wages and quantum have been fixed based on the Minimum Wages Act. 12. But, the stand of the learned counsel for the appellant Board is that since the deceased had worked only for 22 days in the appellant Board, he would not have contributed anything to the family. However, this stand is not based on record. Admittedly, at the time of death of the workman, the net income of the family was only Rs.2,109/-. Without relying on any record, this stand has been taken only on assumption and presumption. When the amount received by the first respondent/claimant is only Rs.2,109/-, certainly, there is a possibility for the workman to contribute to his family unless it is denied by way of oral or documentary evidence. Under such circumstances, this stand of the learned counsel for the appellant Board cannot be accepted. 13. Coming to the second point for consideration with regard to quantum, it is not the case of the appellant Board before this Court that any document was produced with regard to the wages received by the deceased workman. It is also not the case of the appellant Board before this Court that in the absence of a document, when the deceased is a workman, the Minimum Wages Act will not have its application. Besides, the adoption of wages by applying the Minimum Wages Act, in the considered opinion of this Court, cannot be found fault with and it is correct. Under such circumstances, though the learned counsel for the appellant Board has relied on the judgment reported in 1999 (III) CTC 416 , The Superintending Engineer, Tiruvannamalai Electricity System, North Arcot District vs. S. Kannaiyan and 2 others, that will not apply to the facts of this case for the reason that in that case, the issue dealt with was that the deceased was not directly employed under the Electricity Board, but, through a contractor. Based on that, that issue was decided. Based on that, that issue was decided. But, here, it is not the case of the appellant Board before this Court also that the deceased was not an employee of the appellant Board and on the other hand, admitting the fact that the deceased is an employee of the appellant Board, questioning the dependency as well as quantum, this appeal is filed. As far as these two aspects are concerned, the same have been answered in the previous paragraphs. Consequently, this Court finds no infirmity in the order passed by the Commissioner which is under challenge in this appeal. Hence, this Civil Miscellaneous Appeal is dismissed. No costs. Connected Miscellaneous Petitions are closed.