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2015 DIGILAW 2632 (MAD)

A. Thangaraj v. Jeenath Paritha

2015-07-27

V.M.VELUMANI

body2015
JUDGMENT : V.M. Velumani, J. 1. This Civil Miscellaneous Appeal has been filed by the appellant, against the award, dated 10.01.2005, made in W.C. No. 418 of 2002, on the file of Commissioner for Workmen Compensation, Madurai. The appellant has filed W.C. No. 418 of 2002 against the respondents claiming a sum of Rs. 4,76,527.50, as compensation. The said petition was dismissed, on 10.01.2005, by the Commissioner for Workmen Compensation, Madurai. Against the said order, the present appeal has been filed. 2. According to the appellant, he was working as Mason under the second respondent. The second respondent was constructing a building for commercial purpose on behalf of the first respondent. The second respondent engaged the appellant and other workers, for construction. They were staying in temporary shed in the construction site. On 10.04.2002, about 8 p.m., under the instruction from the second respondent, the appellant and other workmen were unloading marble stones from the lorry. At that time, the marble stones slided down from the lorry and fell upon the appellant and other workmen, who were standing near the lorry. Due to the said impact, the appellant suffered grievous injuries. He was taken to Ramanathapuram Government Hospital and after first aid, he was taken to Meenakshi Mission Hospital, Madurai, for further treatment. He was taking treatment as inpatient from 11.04.2002 to 24.04.2002, in the said hospital. Due to the injuries suffered by him, he is not able to do work, as previously done by him. The accident took place during and in the course of employment under the second respondent. The first respondent as principal employer and the second respondent as contractor, are liable to pay compensation. Therefore, he claimed a sum of Rs. 4,76,527.50, as compensation, from the respondents. 3. The first respondent did not contest the matter. The second respondent filed statement of objections, denying the averments made by the appellant. The second respondent denied that the appellant was not employed by him. He has stated that he is only a Consulting Engineer and he would supervise the construction work. He did not employ any worker. He further stated that the construction work would end at 6 p.m. and the accident had occurred at 8 p.m., after the working hours. The appellant was a loadman of the lorry, which transported marble stones. He has stated that he is only a Consulting Engineer and he would supervise the construction work. He did not employ any worker. He further stated that the construction work would end at 6 p.m. and the accident had occurred at 8 p.m., after the working hours. The appellant was a loadman of the lorry, which transported marble stones. If at all, the appellant is entitled to any compensation, only the owner of the lorry is liable to pay compensation. 4. Before the learned Commissioner for Workmen, Madurai, the appellant himself was examined as P.W. 1 and one Hariharan was examined as P.W. 2., and marked three documents as Exs. P1 to P3. The second respondent examined himself as R.W. 1 and did not mark any document. 5. The Commissioner for Workmen Compensation, Madurai, considering the pleadings and evidence, came to the conclusion that the appellant was not employed by the second respondent and the accident did not take place during and in the course of employment under the second respondent and dismissed the W.C. 6. Against the said order, the present appeal has been filed. 7. At the time of admission, the following substantial questions of law have been framed: (a) Whether the burden of proof lies on the employer, when he denied employer/employee relationship? (b) Whether examination of Doctor is necessary, when the Certificates issued by him were marked by the appellant? 8. The learned counsel for the appellant contended that the learned Commissioner for Workmen Compensation committed an error of law in placing onus of the appellant to prove that he was employed by the second respondent. On the other hand, he contended that as per well settled judicial pronouncements, it is for the employer to prove the workman, is not employed under him. He further contended that the learned Commissioner based on the minor discrepancies in the discharge summary, dismissed the W.C. He also contended that the appellant by examining P.W. 2, proved that he was working under the second respondent. The learned Commissioner failed to consider that the second respondent is doing construction work for the first respondent and prayed for allowing the appeal. 9. Per contra, the learned counsel for the second respondent contended that being a Consulting Engineer, the second respondent has not engaged any worker. He was engaged only to supervise the work. The learned Commissioner failed to consider that the second respondent is doing construction work for the first respondent and prayed for allowing the appeal. 9. Per contra, the learned counsel for the second respondent contended that being a Consulting Engineer, the second respondent has not engaged any worker. He was engaged only to supervise the work. The construction work would end at 6 p.m. on every day. He was not present in the work site at the time of accident. He was informed about the accident only on the next day. The appellant unloaded the marble stones only as loadman of the lorry. He was never employed by the second respondent and therefore, he prayed for dismissal of the appeal. 10. From the pleadings and evidence, it is admitted fact that the accident took place on 10.04.2002, at 8 p.m. The accident took place while the marble stones were unloaded from the lorry. It is not the case of the appellant that the construction work was going on at the time of accident. The appellant has stated that he is a Mason. Therefore, unloading the marble stones from the lorry is not the work of Mason. The appellant has stated that he unloaded the marble stones at the instruction of the second respondent. On the other hand, the second respondent has specifically stated that he was not present in the site at the time of accident and he was informed about the accident only on the next day. P.W. 2 gave evidence that he worked as 'Sitthal' with the second respondent. He deposed that the appellant was working as Mason under the second respondent, but in the Chief Examination itself, he has stated that they have loaded marble stones in the lorry and brought to the site, which reads as follows: This shows that he was employed by the lorry owner. 11. The usage of plural in the abovesaid sentence would show that the appellant also came in the lorry, as loadman. When the appellant himself has admitted that the accident took place at 8 p.m., P.W. 2, stated that the accident took place not at 8 p.m., but at 7 p.m. This may be a minor discrepancy. But, taking this along with entire evidence of P.W. 2, reveals that he is not a reliable witness. Further, he was working with the lorry owner at the time of giving evidence. But, taking this along with entire evidence of P.W. 2, reveals that he is not a reliable witness. Further, he was working with the lorry owner at the time of giving evidence. In view of the evidence of P.Ws. 1 and 2 and R.W. 1 coupled with denial of second respondent that he did not engage the appellant at any point of time, I hold that there is no proof that the appellant worked as Mason under the second respondent and the accident took place during and in the course of employment. The learned Commissioner has given valid and cogent reasons for holding that the appellant is not an employee of the second respondent. There is no reason or circumstances warranting interference with the order of the learned Commissioner, as no substantial questions of law have arisen in the appeal. In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.