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2022 DIGILAW 1830 (MAD)

Managing Director, Erode v. P. Thangaraj

2022-06-30

R.THARANI

body2022
JUDGMENT : (Prayer: This Civil Miscellaneous Appeal is filed under Section 30 of Workman Compensation Act, against the order and decretal order, dated 14.02.2011, made in W.C.No.148 of 2008, on the file of the Workmen's Compensation Tribunal, (Deputy Commissioner of Labour), Dindigul.) 1. This Civil Miscellaneous Appeal has been filed against the order, dated 14.02.2011, made in W.C.No.148 of 2008, on the file of the Workmen's Compensation Tribunal, (Deputy Commissioner of Labour), Dindigul. The appellant herein is the respondent and the respondent herein is the petitioner before the Workmen's Compensation Tribunal, (Deputy Commissioner of Labour), Dindigul. 2. Brief substance of the petition filed by the petitioner, in W.C.No.148 of 2008, is as follows : The petitioner is working in the Spinning Mill of the respondent for the past two years. The petitioner used to work as a loadman, whenever there is necessity. On 26.02.2008, on such direction, when the petitioner and co-workers were unloading the goods, without informing the petitioner and others, the driver of the lorry moved the vehicle and hence, the petitioner fell down from the lorry and the goods from the lorry fell upon the petitioner. The petitioner sustained injuries, he was taken to KMGH Hospital, then, he took treatment in Dindigul J.J.Hospital. The petitioner was earning Rs.200/- per day and Rs.6,000/- per month. The petitioner sustained 100% disability and now, he was not in a position to do any work. The petitioner sent a notice on 26.08.2008, claiming a sum of Rs.5,00,000/- as compensation and filed this petition a compensation of Rs.5,00,000/-. 3. Brief substance of the claim petition, in W.C.No.148 of 2008, is as follows : It is wrong to state that the petitioner was an employee of the respondent. It is wrong to state that the petitioner was employed by the respondent on 26.02.2008. There is no relationship of employer and employee between the petitioner and the respondent. The petitioner has to prove the same. The injuries were not proved by medical evidence. Injuries are denied. 4. On the side of the petitioner, 3 witnesses were examined and 6 documents were marked. On the side of the respondent, one witness was examined and no document was marked. The Workmen Compensation Tribunal, after hearing both sides, awarded a sum of Rs.1,63,643/- as compensation for the petitioner. The injuries were not proved by medical evidence. Injuries are denied. 4. On the side of the petitioner, 3 witnesses were examined and 6 documents were marked. On the side of the respondent, one witness was examined and no document was marked. The Workmen Compensation Tribunal, after hearing both sides, awarded a sum of Rs.1,63,643/- as compensation for the petitioner. Against that order, the respondent in the claim petition has filed this Appeal on the following grounds:- The respondent failed to prove that he was a Workman in the appellant – Company. It is the duty of the claimant to prove that he was a Workman. The Tribunal wrongly shifted the burden on the appellant. The respondent failed to produce any documents to show that he was disabled. The respondent failed to prove that there was employer and employee relationship between the appellant and the respondent. The injury was simple in nature. The respondent took treatment only as out-patient. Identity Card of the respondent was not filed to prove that he was an employee of the appellant. The award is excessive. 5. On the above grounds, this Court, by its order dated 20.10.2011, admitted this appeal on the following substantial questions of law:- 1. Whether the Commissioner of Workmen's Compensation (Deputy Commissioner of Labour), Dindigul, is not having jurisdiction to entertain the claim petition in W.C.No.142 of 2008? 2. Whether the respondent will not come under the amplitude of “Workman” as defined under Section 2(1)(u) of the Workmen's Compensation Act, 1952? 3. Whether the employer and employee relationship was not in subsistence between the appellant and the respondent at the material time? 4. Whether the respondent had sustained injuries during the course of his employment under the appellant? 5. Whether the tribunal is not correct in awarding compensation of Rs.1,63,643/- for the simple injuries sustained by the respondent, in the alleged accident occurred during the course of his employment? Issue Nos.2 & 3:- 6. On the side of the appellant, it is stated that the respondent was not working in the factory of the appellant. No document was filed on the side of the claimant to show that the claimant/respondent herein was the employee of the appellant. There was no relationship of employer and employee between the appellant and the respondent. Only six months after the date of the alleged accident, the respondent has come forward with the legal notice. No document was filed on the side of the claimant to show that the claimant/respondent herein was the employee of the appellant. There was no relationship of employer and employee between the appellant and the respondent. Only six months after the date of the alleged accident, the respondent has come forward with the legal notice. The burden of proof is on the claimant to prove that he was an employee of the appellant. The Tribunal has wrongly concluded that it was the duty of the employer to produce document to prove that the claimant was not an employee. 7. On the side of the appellant, it is further stated that P.W.1 has admitted in his cross-examination that he has failed to produce the appointment order. The lorry owner was not impleaded. P.W.2 has deposed that there is possibility of the injuries to have occurred due to the fall from the lorry. The injured was treated only as outpatient Ex.A3 to A6 were not sufficient enough to prove the case of the claimant. 8. On the side of the appellant, it is further stated that the Tribunal failed to consider the evidence in the proper perspective. The Tribunal only reproduce what was stated in the petition. Only on the basis of the legal notice, the compensation was awarded. 9. On the side of the respondent, it is stated that the respondent issued legal notice, which was marked as Ex.A1. Ex.A2 is the acknowledgment card. There was no reply to the legal notice sent by the claimant. Since the appellant failed to deny the notice, the burden is on the employer, to prove that the claimant was not an employee. There is no possibility of the claimant to get documents regarding his service. The appellant is a private company, it is the duty of the appellant to produce the relevant documents. X-Ray was marked as Ex.A4. Disability certificate was marked as Ex.A5. Another X-Ray was marked as Ex.A6 and prayed the appeal to be dismissed. 10. The case of the claimant is that he worked as a Labourer in the company of the appellant. X-Ray was marked as Ex.A4. Disability certificate was marked as Ex.A5. Another X-Ray was marked as Ex.A6 and prayed the appeal to be dismissed. 10. The case of the claimant is that he worked as a Labourer in the company of the appellant. It is stated that the claimant was directed to unload the lorry, on 26.02.2008, when he was unloading the lorry, the driver of the vehicle moved the vehicle, without informing the claimant or the co-workers and thereby, the claimant fell down from the lorry and the goods fell on the claimant. 11. The claimant sent a legal notice, claiming compensation from the appellant. Notice was marked as Ex.A1 and the acknowledgment card was marked as Ex.A2. The appellant has failed to produce the relevant registers before the Tribunal, to prove that the respondent was not an employee of the appellant. Hence, it is decided that the respondent was an employee of the appellant and that the respondent will come under the definition of Workman as defined under Section 2(1) (u) of the Workmen's Compensation Act, 1952 and that there was a relationship of employer and employee, between the claimant and the appellant. Issue No.4 and 5:- 12. On the side of the appellant, it is stated that the respondent has not sustained any injury and the injuries are simple in nature and that he failed to produce documents to show that he sustained injuries and that the respondent failed to prove that he sustained injuries during the course of his employment. 13. On the side of the respondent, it is stated that the respondent proved the injuries by examining P.W.2 and P.W.3 and by marking Ex.A3 to Ex.A6. P.W.3 has fixed the disability at 31%. Disability certificate was marked as Ex.A5. It is stated that the claimant could not sit and he could not walk for a long distance and he could not stand for a long time. Ex.A3 is a receipt for taking treatment as outpatient. X-Rays were marked as Ex.A4 and Ex.A6. 14. The age of the claimant at the time of accident was 23 years. It is stated that the claimant could not sit and he could not walk for a long distance and he could not stand for a long time. Ex.A3 is a receipt for taking treatment as outpatient. X-Rays were marked as Ex.A4 and Ex.A6. 14. The age of the claimant at the time of accident was 23 years. Considering the fact that the claimant took treatment as outpatient and considering the fact that no document was filed by the claimant to prove that he took treatment in Perundurai KMCA Hospital and Dindigul J.J. Hospital and considering that the Doctor, who fixed the disability at 31%, did not give treatment to the claimant and on considering Ex.A3 to Ex.A6, the disability is fixed as 25%. The compensation is calculated as follows:- Compensation = 60/100 X 4000 X 219.95 X 31/100 = Rs.1,31,970/- Issue No.1:- 15. In issue No.2 and 3, it is decided that the claimant is an employee of the appellant. In view of the same, the Commissioner of Workmen Compensation (Deputy Commissioner of Labour), is having jurisdiction to entertain the claim petition. 16. This Appeal is partly allowed. The order, dated 14.02.2011, made in W.C.No.148 of 2008, on the file of the Workmen's Compensation Tribunal, (Deputy Commissioner of Labour), Dindigul, is modified and the compensation is reduced from Rs.1,63,643/- to Rs.1,31,970/-. 17. The appellant/Company is directed to deposit the entire compensation of Rs.1,31,970/- along with interest at the rate of 12% p.a. from the 31st day of accident till the date of deposit to the credit of W.C.No.148 of 2008, on the file of the Workmen's Compensation Tribunal,(Deputy Commissioner of Labour), Dindigul, within a period of eight weeks from the date of receipt of a copy of this judgment, if not already deposited. On such deposit being made, the first respondent herein/claimant is permitted to withdraw the entire award amount, after deducting any amount received by him earlier. The Claimant is not entitled for interest for the default period, if there is any default. No costs.