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2013 DIGILAW 516 (KAR)

Graphs Enterprises v. K. H. Prakash

2013-04-16

S.N.Satynarayana

body2013
JUDGMENT S.N. Satyanarayana, J : 1st Respondent in CR-73/2007 on the file of Commissioner for Workmen's Compensation, Bangalore, has come up in this appeal impugning the Judgment dated 29.02.2012 on the following four grounds: 1. In the first instance, the deceased was not an employee of 1st respondent. 2. Secondly it is contended that since the claimant was working in the premises of 3rd respondent, 3rd respondent would be the employer as defined under Section 2(1)(e) of the Workmen's Compensation Act and as such responsible to pay the compensation. 3. That there was no nexus between the death of deceased due to heart attack the nature of employment, and 4. That even assuming for a moment, it is heart attack, which is not properly explained with necessary documents to establish that the death is directly attributable to employment. 2. Heard the Counsel for appellant and as well as contesting respondent Nos.2 and 3 inasmuch as 1st respondent, K.H. Prakash is stated to have died subsequent to filing of appeal and in that behalf a memo is already filed by the Counsel appearing for him. On re-appreciation of grounds of appeal with reference to the finding of the Commissioner in the Judgment impugned and also the Judgment relied upon by the Counsel appearing for appellant, it is seen as under: 3. Admittedly the deceased K.P. Vinayaka is son of respondent Nos. 1 and 2 herein. It is not in dispute that he died on 19.09.2006 due to heart attack and at the relevant time, he was in the office premises of respondent No.3 herein, namely M/s. NTTF Industries Limited. The materials on record disclose that the deceased was employed by appellant as mechanic. The appellant had undertaken the work of repairing the grinder installed in the premises of 3rd respondent. Hence, to repair the same deceased was sent to the premises of 3rd respondent to carry out repair of grinding machine. Therefore, the relationship of employee and employer between them cannot be disbelieved, though it is disputed by appellant. The pleadings and other evidence also clearly support the said fact. 4. So far as the second contention is concerned, according to appellant liability to pay compensation could not be saddled on it even though the relationship of employer and employee between the appellant and deceased is accepted. The pleadings and other evidence also clearly support the said fact. 4. So far as the second contention is concerned, according to appellant liability to pay compensation could not be saddled on it even though the relationship of employer and employee between the appellant and deceased is accepted. According to appellant, the entire liability to pay compensation should be saddled on the 3rd respondent, since death has taken place in the premises of 3rd respondent, the said respondent should be treated as employer of deceased in the light of definition of Section 2(1)(e) of the Workmen's Compensation Act, which reads as under: "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him." 5. On going through the same, it is clearly seen that the liability of 3rd respondent herein would come into place only in an event, where his services are lent by appellant in favour of 3rd respondent. If that is the situation, then the liability would be on the 3rd respondent also could be seen from the Judgment relied upon by the appellant in the matter of Zila Sahakari Kendriya Bank Maryadit Vs. Shahjadi Begum and others reported in [ (2006) 11 SCC 692 ], wherein the services of a driver was requisitioned for election purpose from the appellant bank during the course of his employment under the Election Officer, he died. Therefore the liability to pay the compensation is fixed on Election Commissioner in the said case. In the instant case, his services was not requisitioned by the 3rd respondent, it is infact the deceased was deputed to that place by appellant to do its job for which it had entered into a contract with 3rd respondent to repair its machine. In those circumstances, by no stretch of imagination the relationship of deceased could be termed as that of employee of 3rd respondent. Therefore the ratio laid down in the aforesaid Judgment will have no basis and the interpretation sought does not stand to reason. 6. In those circumstances, by no stretch of imagination the relationship of deceased could be termed as that of employee of 3rd respondent. Therefore the ratio laid down in the aforesaid Judgment will have no basis and the interpretation sought does not stand to reason. 6. Coming to third aspect that the death of Vinayaka is not related to his job is not properly explained and demonstrated by the claimant, inasmuch as on the ill-fated day immediately after reaching the premises of 3rd respondent, Vinayaka died even before he could commence the work. In that view of the matter, death cannot be related to his employment and that the death due to heart attack is not established to his employment and in support of that appellant relied upon the Judgment of the Apex Court in the matter of Rashida Haroon Kupurade Vs. Divisional Manager, Oriental Insurance Company Limited and others reported in [ (2010) 3 SCC 271 ] and also in the matter of Shakuntala Chandrakanth Shreshti Vs. Prabhakar Maruti Garvali & Anr. Reported in AIR 2007 SC 248 . 7. On going through the two Judgments, it is clearly seen that they have no bearing to the case on hand inasmuch as the deceased on that day has carried the required spare part and other machinery from the premises of factory of appellant to that of 3rd respondent for the purpose of carrying out the repairs of grinding machine. Before reaching the said premises, no doubt he has attended his work in the office of appellant and thereafter by getting necessary equipments for continuing his work in the premises of 3rd respondent he has reached the same with requisite materials and before commencement of the same, due to strain he has suffered heart attack and he died. It is also not in dispute immediately he was taken to Hospital and the opinion of the doctor is also to the effect that he has died because of heart attack. In that view of the matter, this Court holds that the aforesaid two Judgments will have no bearing to the facts and circumstances of this case. 8. In view of the aforesaid discussions, the fourth Judgment relied upon by the Counsel for appellant in the matter of Jyothi Ademma Vs. In that view of the matter, this Court holds that the aforesaid two Judgments will have no bearing to the facts and circumstances of this case. 8. In view of the aforesaid discussions, the fourth Judgment relied upon by the Counsel for appellant in the matter of Jyothi Ademma Vs. Plant Engineer, Nellore and another reported in [ (2006) 5 SCC 513 ] also does not stand to reason inasmuch as this Court has held that the claimant have rightly established that deceased was employee of appellant at the time of his death and also the fact that he died in the course of his employment in carrying out the repair work. In that view of the matter, the ratio laid down in the aforesaid Judgment, will have no bearing to the facts. In that view of the matter, no grounds are made out to impeach the correctness of the finding arrived at in the Judgment impugned in CR-73/2007, which calls for interference by this Court in this appeal. Hence, the appeal is dismissed. 9. However before resting, this Court will place on record certain observation in filing the claim petition. On going through the pleadings, this Court has seen that the deceased Vinayaka was married to one Swapna, two years prior to his accidental death. Material on record would also disclose that first claimant before the Commissioner, father of deceased did not even bothered to go and see his son while he was in death bed. However, subsequently he filed a claim petition suppressing the fact that his son was already married to Swapna and she is the rightful claimant. Under the Workmen's Compensation Act, it is the legal heirs who are entitled to seek compensation. In the instant case, father could not have been the legal heir of deceased to seek compensation as contemplated under Section 8 of the Hindu Succession Act, Schedule I of Section 8, would clearly disclose the wife and mother as legal heirs, who are entitled to seek compensation. In the instant case, father could not have been the legal heir of deceased to seek compensation as contemplated under Section 8 of the Hindu Succession Act, Schedule I of Section 8, would clearly disclose the wife and mother as legal heirs, who are entitled to seek compensation. Therefore, even assuming that 1st respondent would be alive today, he would not be entitled to receive compensation and simultaneously the mother, who is 2nd respondent in this appeal also would not be sole beneficiary to the compensation awarded by the Commissioner, she would be entitled to receive only 1/3rd of compensation that is awarded by the Commissioner with proportionate interest, for the reason that the younger legal heir, the widow of deceased Vinayaka, who has lost her husband at the young age would be entitled to receive 2/3rd of compensation. 10. Accordingly, while dismissing the appeal filed by 1st respondent-employer, Judgment and Order passed by the Commissioner is modified accordingly. The 2nd respondent herein, namely mother of deceased is entitled to 1/3rd of compensation awarded for the death of her son, Vinayaka with proportionate interest and balance 2/3rd with proportionate interest is required to be released in favour of Swapna, wife of deceased Vinayaka, after arraying her as party in the disposed of proceedings in CR-73/2007. The compensation payable to wife of deceased should be released in her favour on proper identification of said person. Appeal was dismissed.