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2019 DIGILAW 2895 (MAD)

M. Gnanasekaran v. S. Devakani

2019-10-24

J.NISHA BANU

body2019
JUDGMENT : (Prayer: Appeal filed under Section 30 of the Workmen’s Compensation Act, against the order dated 14.12.2017 made in W.C.No.55/2012 on the file of the Commissioner of Workmen’s Compensation, Madurai.) 1. This appeal has been filed against the order dated 14.12.2017 made in W.C.No.55/2012 on the file of the Commissioner of Workmen’s Compensation, Madurai. 2. It is the case of the respondents/claimants that on 22.10.2011 about 09.00 a.m., one Santhanam, husband of the 1st respondent, father of the respondents 2 to 4 and son of the 5th respondent, who on the fateful day was working under the appellant as a driver in a Tractor bearing registration No.TN-59-C-5565, was ploughing the field of the appellant, the said Tractor stuck in the mud and sand and got capsized, in which, Santhanam sustained grievous injuries and died on the spot. For the death of Santhanam, the respondents/claimants filed W.C.No.55/2012 before the Deputy Commissioner of Labour, Madurai, claiming compensation of Rs.3,68,340/-. Resisting the claim, the appellant filed counter denying the employer-employee relationship between him and the deceased and contended that the accident had not occurred during the course of employment and the deceased after the work drove the Tractor negligently, resultantly, the Tractor got capsized thereby he invited the accident and therefore, the appellant is not liable to pay the compensation. 3. The Deputy Commissioner of Labour after considering the oral and documentary evidence adduced on either side held that the deceased died during the course of employment under the appellant in his Tractor bearing registration No.TN-59-C-5565 and awarded compensation of Rs.5,71,257/-. Aggrieved by the above award, the appellant/employer has filed this appeal raising the following substantial questions of law:- (a) Whether the learned Commissioner is right in holding that the deceased was an employee under the appellant when absolutely there is no material evidence to prove the same? (b) Whether the burden of proof relating to the relationship of the employer and employee on the part of the claimants is discharged by the claimants? (c) Whether the deceased was a workman under the definition of Section 2(n) of the Workmen’s Compensation Act? (d) Whether the deceased as a farm worker exempted under the Workmen’s Compensation Act? (e) Whether the accident has occurred during the course of employment? (f) When the deceased was negligent and violating the working condition, whether he is entitled to compensation under the Workmen’s Compensation Act? (d) Whether the deceased as a farm worker exempted under the Workmen’s Compensation Act? (e) Whether the accident has occurred during the course of employment? (f) When the deceased was negligent and violating the working condition, whether he is entitled to compensation under the Workmen’s Compensation Act? (g) Is it correct to rely upon a G.O. for Government servant by the learned Commissioner for fixing the wages which is against Section 5 of the Act? (h) Is it correct to fix the monthly income at Rs.6,150/- when there is no proof of the same and in such a case, whether the Minimum Wages Act only applicable? (i) Is it correct to award compensation more than that of the claim amount? 4. Learned counsel for the appellant would submit that when there was no material evidence to prove that the deceased was an employee under the appellant, the Deputy Commissioner of Labour ought not to have held that the deceased was the employee of the appellant. He further contended that except the FIR, no other evidence was produced to prove the employer-employee relationship and therefore, when the claimants have not discharged the burden of proof on their part, the learned Commissioner ought not to have shifted the burden on the appellant solely relying upon the FIR. Further, the learned Commissioner has failed to note that the accident had not occurred during the course of employment. It is also contended that the deceased was working under the appellant only for one day, as such, being the casual employee, he will not come within the purview of workman as per Section 2(n) of the Workmen’s Compensation Act and therefore, the appellant is not liable to pay the compensation. On the quantum, the learned counsel would contend that fixation of monthly income of the deceased at Rs.6,150/- relying upon a G.O is wholly erroneous. Thus, he would pray for setting aside the award passed by the learned Commissioner. 5. Learned counsel for the respondents/claimants would contend that the appellant himself had categorically admitted that he had paid wages to the deceased and therefore, the employer-employee relationship is not disputed. Thus, he would pray for setting aside the award passed by the learned Commissioner. 5. Learned counsel for the respondents/claimants would contend that the appellant himself had categorically admitted that he had paid wages to the deceased and therefore, the employer-employee relationship is not disputed. He further contended that as per the Minimum Wages Act amended on 18.01.2010, the upper limit of the salary for the drivers has been fixed as Rs.8,000/- which has also been dealt with in the judgment reported in 2018 (1) TNMAC 115, and therefore, the learned Commissioner ought to have fixed the monthly income of the deceased at Rs.8,000/- and calculated the compensation accordingly. It is also contended that the appellant has deposited the award amount of Rs.5,76,257/- only and the interest amount to the tune of Rs.4,75,000/- at the rate of 12% interest from the date of accident till the date of deposit, has not yet been deposited. For a proposition that the claimants are entitled to interest from the date of accident, the learned counsel relied on various judgments and would pray for appropriate orders. 6. Heard both sides and perused the records. 7. Perusal of record shows that the 1st respondent/wife of the deceased examined herself as PW1 and reiterated the manner of accident as averred in the claim petition and would state that at the time of accident, the deceased was aged 40 years and by working as a driver under the appellant, he earned Rs.5,000/- per month apart from Rs.200/- daily batta. She has marked Ex.P1-FIR lodged against the appellant, Ex.P2-Postmortem report of the deceased, Ex.P3-Death certificate of the deceased, Ex.P4-Ration Card, Ex.P5-Legal-heirship certificate, Ex.P6-R.C. Book of the Tractor involved in the accident and Ex.P7-advocate notice with acknowledgment card. On the side of the appellant, the appellant examined himself as RW1 and no documentary evidence was marked on his behalf. RW1 in his evidence has stated that usually, he will entrust the repair and maintenance work of his Tractor to one Poosari and Manikandan who were running workshops and whenever the appellant needs Tractor driver for ploughing his agricultural field, he will approach the above said persons and they will send him drivers and such drivers will receive wages only from Poosari and Manikandan to whom the appellant will pay money towards wages along with repair and maintenance charges. He would contend that likewise, the deceased also was a driver sent by the above Poosari and Manikandan for ploughing the agricultural field of the appellant and after finishing the work, when the deceased was about to park the Tractor, drove the Tractor negligently and despite caution by others, the deceased attempted to move up the Tractor in a mud road at 5 feet height which resulted in capsizing of the Tractor thereby the deceased died on the spot. 8. Though the appellant has contended that the deceased was not employed under him and he was sent by Poosari and Manikandan only for one day, he did not choose to examine the above said persons to prove the same. Whereas, on the side of the claimants, except the FIR, no other evidence was let in to prove that the deceased was an employee under the appellant and relying upon the FIR and the oral evidence of PW1, the Deputy Commissioner of Labour has held that the deceased was the employee under the appellant. It is well settled that FIR is not an encyclopedia. It can be relied on, for the purpose of setting the criminal law in motion, and all that is stated in the FIR, cannot be said to be the facts admitted, and if there is any omission in the FIR to state any fact, it does not mean that evidence cannot be adduced, either at the time of investigation by the Police for laying a charge against the accused or in the claim petition when compensation is claimed. Therefore, the case was listed on three occasions under the caption ‘for clarification’ to explore the possibility of any settlement between the parties. But, on 14.10.2019, learned counsel for the appellant would state that there is no possibility of settlement and therefore, the case has been again reserved for judgment. 9. Though the respondents/claimants claimed compensation of Rs.3,68,340/- stating that the deceased as a driver under the appellant, earned Rs.5,000/- per month, the Deputy Commissioner of Labour relying upon G.O.No.64, Labour and Employment Department, dated 23.07.2009, has fixed the monthly wages of the deceased at Rs.6,401/- and awarded the compensation of Rs.5,76,257/- more than the claim along with interest. 9. Though the respondents/claimants claimed compensation of Rs.3,68,340/- stating that the deceased as a driver under the appellant, earned Rs.5,000/- per month, the Deputy Commissioner of Labour relying upon G.O.No.64, Labour and Employment Department, dated 23.07.2009, has fixed the monthly wages of the deceased at Rs.6,401/- and awarded the compensation of Rs.5,76,257/- more than the claim along with interest. It is stated by the claimants that the appellant has deposited the award amount of Rs.5,76,257/- and the appellant would state that to purchase peace, he is ready to part with the already deposited amount. 10. Though it is stated that the claimants did not prove the employer and employee relationship, it is an admitted fact that on the date of accident, the deceased was the driver of the Tractor. It is also true that if the Deputy Commissioner of Labour had quantified the compensation as per the admitted salary of the deceased by the claimants, the compensation would be less. 11. Taking into consideration the entire circumstances of the case, I am of the view that ends of justice would be met if the compensation amount is fixed at Rs.5,76,257/- as full quit. Accordingly, the total compensation is fixed at Rs.5,76,257/- as full quit and the respondents/claimants are directed to withdraw the award amount of Rs.5,76,257/- lying in the credit of the claim petition, without filing formal permission petition before the Deputy Commissioner of Labour, Madurai. In the result, this Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.