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2016 DIGILAW 3282 (ALL)

SHIVALIK ENGINEERING WORKS v. GEETA DEVI

2016-09-26

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT Hon’ble Krishna Murari, J.—This first appeal from order under Section 30 of the Employees Compensation Act (for short the ‘Act’) has been filed by the employer challenging the judgment and award dated 30.8.2016 passed by Employees’ Compensation Commissioner awarding a sum of Rs.6,81,551/- as compensation on account of death of workman-Bhola Prasad. 2. Background facts, in brief, are as under : The appellant is a registered partnership firm engaged in the business of work contract and material supply of electrical and engineering items relating to transformers etc. Appellant entered into a contract for erection of electricity poles and its transmission work with the respondent No. 2, Anpara Thermal Power Plant. Deceased-Bhola Prasad was engaged to work in the execution of the Project by the appellant. On 25.2.2015, at about 6 p.m., when the electricity poles were being erected for laying the transmission lines, one of the pole fell down on Bhola Prasad causing grievous injuries and while being taken to the hospital, he died on the way. Claim petition was filed by the claimant-respondent No. 2, wife of the deceased-workman on the allegation that the death occurred during the course of and within the employment with the appellant. It was further pleaded that at the time of death, Bhola Prasad was aged about 25 years and his monthly salary was Rs.9000/- per month. On these allegations, a compensation to the tune of Rs.8,73,880/- alongwith penalty and 12% interest was claimed. 3. Proceedings were contested by the appellant on the allegations that the death was caused due to self inflicted injuries, inasmuch as he did not follow the rule and the directions for the purpose of securing the safety, as such, the employer was not liable to pay any compensation. It was also pleaded that the accident was a result of negligence of the workman himself and, thus, there was no liability. The appellant also stated that after the accident took place, alongwith local leaders, a huge mob assembled and resorted to ‘chakka jam’, and under the pressure of the authorities and the police, in order to maintain peace, a cheque of Rs.1,00,000/- and a sum of Rs.4,00,000/- in cash was given to the claimant by the appellant-employer, and thus also, liability, if any, stood discharged. The appellant also filed a compromise deed dated 25.2.2015 evidencing the amount paid to the claimants by way of settlement. The appellant also filed a compromise deed dated 25.2.2015 evidencing the amount paid to the claimants by way of settlement. On the basis of the pleadings of the parties, the Commissioner framed following four issues. “1. Whether the deceased employee was employed as a workman. 2. Whether the death was caused in course of employment. 3. Whether the workman was drawing wages of Rs.9,000/- per month and was aged 24 years on the date of accident. 4. Whether the claimant was entitled to compensation, and if yes, the quantum and whether any interest and penalty is liable to be imposed.” 4. After analysing the evidence adduced by the parties, the Commissioner returned a finding that deceased was engaged as a workman by the appellant. On issue No. 2, the Tribunal held that the death was caused on account of an accident arising out and in the course of employment. In the absence of any documentary evidence to substantiate the fact that the appellant was getting salary of Rs.9000/- per month, the Tribunal presumed the minimum wages of Rs.6415.50/- prescribed by State of U.P. for unskilled workman as his notional income and finding his age to be 24 years, determined a sum of Rs.7,07,097.14/-. In view of the fact that certain compensation was given by the employer to the claimants, in accordance with the provisions of Section 8 of the Act, the Tribunal deducted amount equal to three months’ wages and, accordingly, determined the compensation of Rs.6,81,551/-. 5. The first submission advanced by the learned counsel for the appellant is that Commissioner failed to appreciate that there was negligence on the part of the deceased himself as he defied the specific directions not to climb the pole while the concrete was wet and, thus, the accident was a result of his own negligence and wilful disobedience of an order expressly given and the act was in violation of the safety procedure prescribed and, thus, there was no liability upon the appellant to pay the compensation. 6. Appellant-employer examined Dinesh Chandra Pathak as D.W. 1, who stated that for fixing the pole, firstly a hole is dug in the earth then pole is put in the hole and thereafter a mixture of concrete is filled in the hole. He further stated that to maintain the balance of the pole, strings are attached to the pole on all the four sides. He further stated that to maintain the balance of the pole, strings are attached to the pole on all the four sides. The strings are attached with such a technique that when the workman pulls it, the knot opens. On the fateful day, when the deceased-workman pulls the string, the knot did not open. Despite clear instructions not to do so, the deceased-workman started climbing on the pole to open the knot and has fell down alongwith the pole, which caused injuries on his head. 7. On analysing the oral evidence adduced on behalf of the appellant-employer and also the pleadings, the Commissioner held that there was no evidence of disobedience of any order expressly given by a person with authority to the deceased-workman not to climb the pole nor there was any evidence to demonstrate that workmen were explained the safety procedure before they were made to do the work and, thus, it was not a case of any wilful negligence on the part of the deceased-workman so as to absolve the appellant from the liability of paying the compensation. 8. From a perusal of record and analysis of the evidence brought on record of this appeal, we also do not find any pleadings or evidence to establish that any person with authority had given directions to the workman not to climb the pole or the workman was ever explained the safety procedure to be followed. On the contrary, it was pleaded in the written statement that other workmen shouted and asked the deceased-workman not to climb the pole as it was risky, but the same does not establish that any authority had given directions to the workman not to climb the pole or he was acting in violation of any safety procedure explained to him to be followed while executing the work. In the absence of any evidence, we do not find any fault with the finding of the Commissioner in this regard and, thus, the first argument advanced by the learned counsel for the appellant has no force. 9. Apart from above factual position that there was no negligence on the part of the workman, but even if there was negligence, it would not dis-entitle the claimants from claiming compensation under the Act. 9. Apart from above factual position that there was no negligence on the part of the workman, but even if there was negligence, it would not dis-entitle the claimants from claiming compensation under the Act. Section 3 of the Act does not create any exception of any kind which permits the employer to avoid his liability even if there was negligence on the part of the workman. Employees Compensation Act is a social welfare legislation meant to benefit the workers and their dependants in case of death of a workman due to accident caused during and in course of their employment and should be construed as such. 10. The above view taken by us finds support from recent decision of the Hon’ble Apex Court in the case of Jaya Biswal and others v. Branch Manager, IFFCO, Tokio General Insurance Company Ltd. and another, 2016 (1) TAC 713 (SC). 11. In the said case, Hon’ble Apex Court repelled the argument that claimants would not be entitled for compensation, in case, the death was caused due to own negligence of the workman. In paragraph 14 of the reports, it has been held as under. “The next contention which needs to be dispelled is that the appellants are not entitled to any compensation because the deceased died as a result of his own negligence. We are unable to agree with the same. Section 3 of the E.C. Act does not create any exception of the kind, which permits the employer to avoid his liability if there was negligence on part of the workman. The reliance placed on the decisions of this Court on Contributory negligence like the Three Judge Bench decision in the case of Mastaan (supra) is wholly misplaced as the same have been passed in relation to the Motor Vehicles Act, 1988, and have no bearing on the facts of the case on hand. The E.C. Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence. It has been held by various High Courts that mere negligence does not disentitle a workman to compensation. The E.C. Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence. It has been held by various High Courts that mere negligence does not disentitle a workman to compensation. Lord Atkin in the case of Harris v. Assosciated Portland Cement Manufacturers Ltd., observed as under: “Once you have found the work which he is seeking to be within his employment the question of negligence, great or small, is irrelevant and no amount of negligence in doing an employment job can change the workman’s action into a non-employment job ... In my opinion if a workman is doing an act which is within the scope of his employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it he is entitled to compensation.” The above reasoning has been subsequently adopted by several High Courts. In the case of Janaki Ammal v. Divisional Engineer, the High Court of Madras held as under: “Men who are employed to work infactories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowing his attention to wander, without ever making a mistake, or slip, without at some period in his career being momentarily careless. Imperfections of this and the like nature form the ordinary hazards of employment and bring a case of this kind within the meaning of the Act.” While no negligence on part of the deceased has been made out from the facts of the instant case as he was merely trying his best to stop the truck from moving unmanned, even if there were negligence on his part, it would not disentitle his dependents from claiming compensation under the Act.” 12. The second submission advanced on behalf of the appellant is that cause of accident was on account of an overt act of the workman totally unconnect with his employment, thus, there is no liability to make payment of any compensation. 13. Liability of employer to make payment of compensation is provided under Section 3 (1) of the Act, which reads as under. “3. 13. Liability of employer to make payment of compensation is provided under Section 3 (1) of the Act, which reads as under. “3. Employer’s liability for compensation.—(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.” 14. Hon’ble Apex Court while interpreting Section 3 (1) in the case of Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali, 2007 (11) SC 668, held as under. “15. The said Act was enacted to provide for payment by certain classes of employer’s to workmen for compensation against injury by accident. The term ‘accidental injury’ has not been defined under the Act. The liability of the employer for payment of compensation, however, would arise if a personal injury is caused to a workman by accident arising out of and in the course of his employment. What is necessary for attracting the charging provision contained in Section 3 of the Act is that (i) an injury must be caused to a workman; (ii) such injury must have been caused by an accident; and (iii) it arose out of or in the course of his employment.” 15. In the case of Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak, 1969 (2) SCC 607 , the Hon’ble Apex Court has held that provisions of the Act would stand attracted, in case, injury by accident arises, both out of and in the course of employment. Explaining the words ‘in the course of the employment’ and ‘arising out of employment’, it has been observed as under. “The words ‘in the course of the employment’ mean ‘in the course of the work which the workman is employed to do and which is incidental to it’. The words ‘arising out of employment’ are understood to mean that ‘during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered’. In other words there must be a casual relationship between the accident and the employment. The expression ‘arising out of employment’ is again not confined to the mere nature of the employment. In other words there must be a casual relationship between the accident and the employment. The expression ‘arising out of employment’ is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger the injury would be one which arises ‘out of employment’. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.” 16. Applying the aforesaid test laid down by the Hon’ble Apex Court to the facts of the case, we find that accident took place not only in the course of employment, but was arising out of employment as well. The facts and the evidence clearly establish that there was connection between the death of the workman and his employment and, thus, the appellant employer cannot wriggle out from its liability to make payment of compensation. Thus, the second argument advanced by the learned counsel for the appellant has also no legs to stand and is not liable to be sustained. 17. The next submission advanced by the learned counsel for the appellant is that in view of the fact that a sum of Rs.5 lacs was already paid to the claimants, the Tribunal committed a manifest error of law in imposing damages and the same is in violation of the Section 4-A of the Act. 18. The argument is not at all sustainable in view of specific finding recorded by the Tribunal that since some amount was paid to the claimants as financial assistance, there is no justification to impose any penalty. 19. It is next submitted that since admittedly a sum of Rs.1 lac was paid by cheque and Rs.4 lacs in cash to the claimant under the pressure from the public and police authority, the said amount was liable to be deducted from the compensation determined by the Commissioner, which he has failed to do so by misinterpreting the provisions of Section 8 of the Act. 20. Provisions of Section 8 of the Act, relevant for the purpose of the case, are reproduced hereunder. “8. 20. Provisions of Section 8 of the Act, relevant for the purpose of the case, are reproduced hereunder. “8. Distribution of compensation.— (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation. [Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation of an amount equal to three months’ wages of such workman and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.] (2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto. (3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.” 21. A plain reading of the aforesaid provision goes to show that any payment made directly by an employer to the claimant shall not be deemed to be a payment of compensation unless it is deposited with the Commissioner and a receipt is issued by him in this regard. The only exception is contained in the proviso to sub-Section (1) of Section 8 to the effect that only an amount equal to three months’ wages of such workman, if the same does not exceed to the compensation payable, shall be deducted by the Commissioner from such compensation. 22. In the case in hand, though there is an admission by the claimant-respondent of having received a sum of Rs.1 lac through cheque and Rs.4 lac in cash from the employer, but in view of the provisions contained in Section 8 of the Act, the same cannot be deemed to a payment of compensation and Commissioner rightly deducted a sum equal to three months’ wages of the workman from the compensation determined in accordance with the proviso. The receipt, on which the reliance is being placed upon by the appellant, was not executed by the Commissioner, but it was signed by the In-charge of police station Anpara, Member of Zila Panchayat, village Pradhan and certain members of the public. The document even did not contain the signature of the claimant-respondent, and only a photocopy thereof was filed in evidence. 23. In the circumstances, we do not find any fault in the findings recorded by the Commissioner that only a sum of 3 months’ wages was liable to be deducted from the amount of compensation payable in view of proviso to Section 8 (1) of the Act. 24. Lastly, it was submitted that the impugned order is contrary to the law laid down by the Hon’ble Apex Court in the case of Malikarjuna G. Hiremath v. Branch Manager, Oriental Insurance Co. Ltd. and another, AIR 2009 SC 2019 . 25. In the aforesaid case, the fact was that the workman, who was driving the vehicle on the directions of the insured, had gone to Gurugunta from Siraguppa. Thereafter, he went to Amreshwara temple and while he was sitting on the steps of the pond in the temple, slipped and died due to drowning. In such circumstances, the Hon’ble Apex Court held that the death was not arising out of employment and, thus, liability could not be fastened either on the insurer or the insured. The facts of the said case are clearly distinguishable from the facts of the present case, where the accident took place not only out of employment, but also in the course of employment. 26. In our considered opinion, the award cannot be held contrary to the law laid down in the said case by the Hon’ble Apex Court. On the contrary, the ratio of the decision applies with full force in favour of the claimants in the facts and circumstances of the case. 27. On an analysis of the award, we find that the Tribunal also did not commit any fault in recording the finding that the deceased was aged 24 years on the basis of the date of birth recorded in the mark sheet of the Secondary examination, 2004. The determination of notional income on the basis of the minimum wages prescribed by State Government, in the absence of any evidence to establish the wages of the deceased-workman, also cannot be faulted with. The determination of notional income on the basis of the minimum wages prescribed by State Government, in the absence of any evidence to establish the wages of the deceased-workman, also cannot be faulted with. 28. Thus, we do not find any illegality in the methodology adopted by the Commissioner for determining the compensation and the same is strictly in accordance with the provisions of the Workmen’s Compensation Act, 1923 and no illegality is reflected therefrom. 29. In view of above facts and discussions, we are of the considered opinion that no substantial question of law is involved in the appeal. 30. The appeal accordingly stands dismissed in limine. 31. However, in the facts and circumstances, we do not make any order as to costs.