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2013 DIGILAW 502 (MAD)

M. Paramasivam v. Ayyanar

2013-01-23

C.S.KARNAN

body2013
JUDGMENT 1. The appellant/first respondent has preferred the present appeal in C.M.A.No.3082 of 2003, against the order passed in W.C.No.71 of 2002, on the file of the Deputy Commissioner of Labour Court, Tirunelveli. 2. The petitioner, viz., Ayyanar has filed the claim in W.C.No.71 of 2002, claiming compensation of a sum of Rs.2,65,644/-from the respondents for the injuries sustained by him in a motor vehicle accident, while he was doing his duty in the course of employment under the first respondent. It was submitted that the petitioner was employed in the first respondent's company, viz., "Manikandan Match Works" and that he was getting a daily wage of Rs.175/-. On 05.05.2001 , at about 7.30 p.m., when the petitioner was unloading the matchbox bundles from the first respondent's van bearing Registration No.TN-69-0780, the driver of the van, without sounding horn or giving any indication, had suddenly started the van in reverse and dashed the van against the petitioner. The petitioner sustained injuries in his lower hip and was admitted at the Doctor C.K.Chidambaram Hospital, wherein X-rays were taken and it was found that the petitioner's right hip bone had been fractured. He was treated as an inpatient for 10 days. As the petitioner experienced severe pain in his hip, he subsequently took treatment at Kovilpatti Government Hospital from 01.06.2001. It was found here that the movements of the petitioner's right thigh had been altered and that the petitioner had sustained 20% disability due to the accident. It was submitted that the petitioner was getting a monthly salary of Rs.1,950/-per month from the first respondent. As the first respondent had taken a policy of insurance with the second respondent extending coverage to his workers, the petitioner has filed the claim against both the respondents. 3. The first respondent, even after receipt of notice sent by the office of the Deputy Commissioner of Labour had not submitted any counter or appeared for enquiry. 4. The second respondent in his counter has submitted that the petitioner should prove through documentary evidence that he had worked in the first respondent's firm. The averments in the claim regarding the petitioner's daily wage, manner of accident, nature of injuries sustained by the petitioner and disability were also not admitted. It was submitted that the petitioner has to prove that the first respondent's van had been insured with them at the time of accident. The averments in the claim regarding the petitioner's daily wage, manner of accident, nature of injuries sustained by the petitioner and disability were also not admitted. It was submitted that the petitioner has to prove that the first respondent's van had been insured with them at the time of accident. It was submitted that the injuries sustained by the petitioner had not occurred in the alleged accident but due to some other reasons. It was submitted that the F.I.R. had been filed belatedly after a delay of 25 days and that the reasons given by the petitioner for delay in filing the F.I.R. were not acceptable. It was submitted that as the petitioner had not worked as an employee under the first respondent, the second respondent could not be held liable to pay any compensation. It was submitted that the claim was excessive. 5. The Deputy Commissioner of Labour framed five issued for consideration in the case, viz., "(i) Did the petitioner work as an employee in the first respondent's company? (ii) If so, did the accident occur while he was doing his duty in the course of employment under the first respondent on 05.05.2001? (iii) What was the age and income of the petitioner at the time of accident? (iv) What is the disability sustained by him? and (v) What is the quantum of compensation which the petitioner is entitled to get and who is liable to pay compensation?" 6. On the side of the petitioner, two witnesses were examined and two documents were marked as Exs.P1 and P2 viz., Ex.P1-F.I.R., Ex.P2-disability certificate. On the side of the respondents, no witnesses were examined and three documents were marked as Exs.R1, R2 and R3, viz., Ex.R-1-copy of insurance cover note, Ex.R2-copy of R.C. of vehicle bearing Registration No.TN-69-0780 and Ex.R3-copy of insurance policy. 7. P.W.1, the petitioner had adduced evidence which is corroborative of the statements made by him in the claim regarding manner of accident. He had further deposed that after the accident, his co-employee working in the first respondent's firm, viz., Manappan and his brother had admitted him at the Chidambaram Hospital, Kovilpatti, wherein he had taken treatment as an inpatient for 10 days. He had further deposed that after the accident, his co-employee working in the first respondent's firm, viz., Manappan and his brother had admitted him at the Chidambaram Hospital, Kovilpatti, wherein he had taken treatment as an inpatient for 10 days. He deposed that initially the first respondent had extended monetary assistance for purchase of medicines for a few days and that he had subsequently stopped giving monetary assistance, and had refused to pay any compensation. He deposed that the first respondent had initially promised to pay him compensation and had prevented him from lodging a police complaint and hence he had filed the complaint at the police station on 01.06.2001. He deposed that after the accident, he was unable to go to work as he was not able to do any heavy manual labour and further stated that he is not able to walk long distance. On cross-examination, he had stated that he is not in the employment of the first respondent at present and that he had worked a foreman of the first respondent's company, viz., "Manikandan Match Works". He had stated that the van was owned by one Paramasivam and that he was not employed either as driver or as a conductor or as a load man in the said van. He had further deposed that he was getting a daily wage of Rs.175/- and that the first respondent, viz., Paramasivam used to give him this wage every day. He deposed that the accident had occurred while he was doing his duty in the course of employment under the first respondent. 8. P.W.2, S.Thanga Ayyanar, the brother of the petitioner had adduced evidence that he is working as a helper in construction work and that his brother, i.e., the petitioner was employed as a worker under the first respondent, viz., Paramasivam. He deposed that, on 05.05.2001, at about 7.30 p.m., when the petitioner was unloading the matchbox bundles from the first respondent's van bearing Registration No.TN-69-0780, at the first respondent's godown situated about 50 feet away from Arasu Wines, on the Kadalaiyur Road, the driver of the van had suddenly taken the van in reverse, due to which, the petitioner was pinned down by the van against the wall behind him. He deposed that the petitioner has sustained injuries in his right lower hip and that he had admitted the petitioner at Chidambaram Hospital, wherein he had received treatment for 10 days to set right the fractures sustained by him in his hip. He deposed that the first respondent had reneged on his promise to pay compensation. He deposed that the petitioner was subsequently admitted at the Government Hospital on 01.06.2001 and that he had been shown as a a witness in the F.I.R. marked as Ex.R1. 9. The Tribunal on scrutiny of the oral and documentary evidence held that the petitioner has worked as an employee under the first respondent and that the accident had occurred while he was doing his duty in the course of employment under the first respondent and hence held the first respondent liable to pay compensation to the petitioner. 10. On scrutiny of Ex.P1, F.I.R., it is seen that the age of the petitioner is 22 years at the time of accident. As the doctor, who had certified that the petitioner had sustained 20% disability, in the accident, had not been examined, and as the Deputy Commissioner observed that the movements of the petitioner's right hip was more or less normal, held that the disability sustained by the petitioner could only be taken as 15%. As no documentary evidence had been marked to prove the income of the petitioner, the Deputy Commissioner, held that the notional income earned by the petitioner was Rs.1,817/- per month as per the Minimum Wages Act fixed by the Government for "unskilled workers'. The Deputy Commissioner on adopting a multiplier of 221.37, awarded a compensation of Rs.36,201/-to the petitioner as compensation for the loss of income due to disability of 15% (Rs.1,817 x 60/100 x 221.37 x 15/100) and directed the first respondent to deposit the said compensation, within 30 days from the date of receipt of its order. 11. Aggrieved by the award passed by the Deputy Commissioner of Labour, Tirunelveli, the first respondent/Mr. Paramasivam has filed the present appeal. 12. The learned counsel for the appellant has contended that the first respondent herein is not at all a workman under the appellant and that no documents have been filed by him to show that he was a workman under the appellant. Paramasivam has filed the present appeal. 12. The learned counsel for the appellant has contended that the first respondent herein is not at all a workman under the appellant and that no documents have been filed by him to show that he was a workman under the appellant. It was submitted that it at all the first respondent is entitled to any compensation, it is only under the Motor Vehicles Act and not under the Workman Compensation Act. It was contended that the Court below ought to have dismissed the petition filed by the first respondent herein on the ground that the first respondent has not chosen to examine the doctor, who has given certificate regarding the disability of the first respondent and has also not filed any X'ray or any other related document to prove his disability. Hence, it was prayed to set-aside the order passed by the Courts below. 13. On verifying the factual position of the case and arguments advanced by the learned counsel for the appellant, and on perusing the award passed by the learned Deputy Commissioner of Labour, Tirunelveli in W.C.No.71 of 2002, dated 23.06.2003, this court does not find any discrepancy in the said award. Further, the Deputy Commissioner of Labour had framed five issues and determined the compensation after taking into account that the employer-employee relationship existed and that the accident had happened in the course of employment. Hence, this Court, is not inclined to allow the above appeal. As per record of the Court, it is seen that the appellant had deposited a sum of Rs.36,201/- on 16.10.2003. Now, it is open to the first respondent herein to withdraw the entire compensation amount lying in the credit of W.C.No.71 of 2002, on the file of Deputy Commissioner of Labour Court, Tirunelveli, after filing a Memo, along with a copy of this order. The learned Deputy Commissioner of Labour, Tirunelveli is directed to disburse the said compensation amount along with interest, if any accrued thereon, to the claimant after identification of the claimant by the concerned counsel. 14. In the result, the above appeal is dismissed. Consequently, the award passed in W.C.No.71 of 2002, on the file of Deputy Commissioner of Labour Court, Tirunelveli, dated 23.06.2003 is confirmed. Accordingly ordered. There is no order as to costs. Consequently, connected miscellaneous petition is closed.