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2013 DIGILAW 3180 (MAD)

New India Assurance Company Ltd. v. A. Karpagam

2013-09-04

C.S.KARNAN

body2013
Judgment : 1. The appellant/second opposite party has preferred the present appeal in CMA (MD).No.1221 of 2008, against the award dated 15.05.2007, passed by the Deputy Commissioner of Labour - II, at Chennai, in W.C.No.202 of 2006. 2. The short facts of the case are as follows :- The applicants, who are the wife and daughter of the (deceased) Arumugam have filed the claim in W.C.No.202 of 2006, claiming compensation of a sum of Rs.5,00,000/-from the opposite parties for the death of the said Arumugam in an accident arising out of and during the course of doing his duty under the employment of the first opposite party. It was submitted that the (deceased) Arumugam was employed as a coolie in the first respondent's lorry bearing registration No. TN-04-L-9000 and earning Rs.4,500/-p.m. On 28.02.2006 at 5.00 p.m, when the (deceased) Arumugam was in the process of unloading sand from the lorry at Subham Nagar, the shovel of the equipment used for unloading sand flew from the handle and hit against the chest of the (deceased) Arumugam, due to which, he fell down unconscious. He was admitted at Chromepet Hospital and that the Doctor after examination, had pronounced him 'dead on arrival'. It was submitted that the complaint regarding the accident was given by the driver of the lorry, namely, Srinivasan. Hence, the applicants have filed the claim against the first and second opposite parties, who are the owner and insurer of the lorry bearing registration No. TN-04-L.9000. 3. The second opposite party in his counter has denied the averments in the claim regarding age, income and occupation of the (deceased) Arumugam and also submitted that the applicants should prove that they are the legal-heirs of the (deceased) Arumugam through documentary evidence. It was submitted that the first opposite party had not taken any policy of insurance with them and not paid any premium to cover the risk of load-men employed by him and as the accident had occurred only due to the negligence of the deceased who had worked as a coolie and not as a load-man and as there was no employer-employee relationship between the first opposite party and the deceased, the second respondent is not liable to pay any compensation. 4. 4. On the applicants' side, the wife of the deceased, namely, Karpagam, was examined as P.W.1 and one Thiru Pakkiri was examined as P.W.2 and five documents were marked as Ex.P.1 to Ex.P.5, namely, Ex.P.1, copy of First Information Report, Ex.P.2 Post-mortem report, Ex.P.3, Death Certificate, Ex.P.4, Legal heir certificate and Ex.P.5, Insurance Policy. On the respondents' side, no witness was examined and no document was marked. 5. The Deputy Commissioner of Labour, framed two issues for consideration in the case, namely, (1) Is the (deceased) Arumugam a 'workman' as per the Workmen's Compensation Act? Did he die due to injuries sustained by him in an accident arising out of and while doing his work in the course of employment under the first opposite party? what is the age and income of the deceased? and (2) what is the quantum of compensation which the applicants are entitled to get? who is liable to pay compensation to them? 6. P.W.1 had adduced evidence that her husband Arumugam was working as a load-man for the lorry of Sriraman i.e., the first opposite party for the past five years and that her husband was aged 45 years at the time of his death. She deposed that on 28.02.2006, when he was in the process of unloading sand from the first opposite party's lorry, the shovel of the implement used for unloading sand flew from the handle and hit against the chest of her husband, who had fallen down and that he succumbed to the injuries sustained in the accident, while being taken to Chromepet Government Hospital and in support of her evidence, she had marked Ex.P.1 to Ex.P.5. 7. P.W.2, Thiru Pakkiam, the eyewitness of the accident had adduced evidence that the deceased was working as a load-man in the first opposite party's lorry. On 28.02.2006, at about 5.00 p.m, when he and the (deceased) Arumugam were in the process of unloading sand from the first opposite party's lorry bearing registration No. TN-04-L-9000 at Subam Nagar, near Pallavaram, he had seen that the hand grip of the implement used by the deceased for unloading sand had broken and that it had hit against the chest of the deceased, due to which he had fallen down on the sand. He deposed that he along with the driver, namely, Srinivasan had taken the deceased to Chromepet Government Hospital, wherein the Doctor had declared him "dead on arrival". 8. On scrutiny of Ex.P.1, it is seen that the (deceased) was working as load-man for the lorry bearing registration No. TN-04-L-9000 of the opposite party and that on 28.01.2006 he had died due to injuries sustained by him in the accident arising out of and while doing his work as a load-man in the course of employment under the first opposite party. On scrutiny of Ex.P.5, it is seen that the first opposite party's lorry had been covered under a valid policy of insurance with the second opposite party at the time of accident. On scrutiny of Ex.P.1, it is seen that the complaint regarding the accident had also been given by one Srinivasan, who was working as a driver under the first opposite party. Hence, the Tribunal on scrutiny of oral and documentary evidence held that the (deceased) had been employed as a workman, under the first opposite party and that he had died due to injuries sustained by him in the accident arising out of and while doing his work, in the Course of employment under the first opposite party. On scrutiny of Ex.P.2, it is seen that the deceased was aged 45 years at the time of accident. As no documentary evidence had been marked to prove the income of the deceased, the Deputy Commissioner held that the natural income of the deceased was Rs.3585, as per the minimum wages enacted by the Government in G.O.Ms.No2, No.47, Labour and Employment (J-1) dated 01.08.2003. The Deputy Commissioner on adopting a multiplier of 169.44 as was relevant to the age of the deceased awarded a sum of Rs.3,03,721, as compensation to the applicants under the head of loss of income (50/100 x 3585 x 169.44). 9. The Deputy Commissioner, on scrutiny of Ex.P.5, observed that the first opposite party's lorry involved in the accident had been covered under a valid policy of insurance with the second opposite party for period from 04.05.2005 to 03.05.2006 and hence, held the second opposite party, being the insurer of the first opposite party's lorry at the time of accident, liable to pay compensation. The Tribunal directed the second opposite party to pay the said compensation within 30 days from the date of its order and in default directed them to deposit the said compensation together with interest at the rate of 12% per annum from the date of occurrence of accident till date of deposit. 10. Aggrieved by the award passed by the Deputy Commissioner of Labour, the second opposite party/the New India Assurance Company Ltd., Chennai 600 001, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Deputy Commissioner failed to take note of the fact that there was no mention of any personal injury caused by the accident to the deceased workman as per the First Information Report filed in Crime No.267 of 2006, on the file of the Pallavaram Police Station, in respect of the alleged incident by one R.Srinivasan, the driver of the lorry bearing registration No. TN-04-L-9000. It was contended that the Deputy Commissioner failed to note the averments in the claim that the shovel flew from the handle and hit against the deceased on his chest and thereby he fell down unconscious is not disclosed in the First Information Report filed by the driver of lorry bearing registration No. TN-04-L-9000. It was contended that the Deputy Commissioner overlooked postmortem report marked as Ex.R.2, wherein there is clear mention of the fact that there were no external injuries on the person of the deceased and no reason had been mentioned for his cause of death. It was contended that the Deputy Commissioner overlooked the fact that the driver of the lorry had not been examined as a witness to prove the manner of accident as the version of the applicants regarding accident was different from the one stated in the First Information Report marked as Ex.P.1. It was contended that the Deputy Commissioner overlooked the fact that the First Information Report was filed under Section 174 of the Code of Criminal Procedure, with regard to death under suspicious circumstances. It was contended that the Deputy Commissioner also failed to note that no Doctor was examined on the side of applicants to prove the cease of death. Hence, it was prayed to set aside the award passed by the Deputy Commissioner of Labour. 11. It was contended that the Deputy Commissioner also failed to note that no Doctor was examined on the side of applicants to prove the cease of death. Hence, it was prayed to set aside the award passed by the Deputy Commissioner of Labour. 11. The highly competent counsel for the applicants submits that the deceased was travelling in the lorry as a coolie. On 28.02.2006, when the lorry was stationed at Subham Nagar and when the sand was being unloaded from the lorry, the shovel attached to the hand grip flew out and hit the deceased on his chest, due to which, he sustained injuries and died. If clearly indicates that the accident had happened in the course of employment. P.W.2 had stated about the mode of accident, as he was the eyewitness. The learned Deputy Commissioner of Labour had assessed the compensation after considering all aspects. 12. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the Deputy Commissioner of Labour, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation and that the accident had occurred in the course of employment. This Court is of the further view that the learned counsel for the insurance company pointed out that the First Information Report is the vital document and it does not mention about the mode of the accident as alleged in the claim. On this point, this Court is of the view that the first information given is only to show that an accident had occurred. Only after a deep investigation, on the facts regarding the accident to be brought out fully. Therefore, the contention of the learned counsel for the appellant on this count is rejected. The contentions of the learned counsel that there is no external injury on the chest of the deceased to prove that he had been hit by the hand grip of the shovel does not necessarily mean that he had not sustained any internal injury and hence it is evident that his death was not a natural one. This Court is of the further view that the learned Deputy Commissioner of Labour had assessed the compensation on the basis of relevant records, namely, First Information Report, Post Mortem Report, Insurance Policy. This Court is of the further view that the learned Deputy Commissioner of Labour had assessed the compensation on the basis of relevant records, namely, First Information Report, Post Mortem Report, Insurance Policy. Hence, this Court is not inclined to entertain the above appeal. 13. As per the Court records, it is seen that the entire award amount had been deposited before the Deputy Commissioner of Labour, Chennai. Now, the applicants are permitted to withdraw their apportioned share amount, with accrued interest thereon, if any, lying in the credit of W.C.No.202 of 2006, on the file of Deputy Commissioner of Labour - II, Chennai, after filing a memo, along with a copy of this order, and after identification of applicants, by their counsel. 14. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in W.C.No.202 of 2006 dated 15.05.2007 on the file of the Deputy Commissioner of Labour – II, at Chennai, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.