Pavayee v. The Assistant EngineerOperation and MaintenanceTamil Nadu Electricity BoardManickampalayam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:11.9.2008CORAM;THE HONOURABLE MR.JUSTICE S.PALANIVELUCivil Miscellaneous Appeal No.2799 Of 20021.Pavayee2.Chinnusamy..Appellantsvs1.The Assistant EngineerOperation and MaintenanceTamil Nadu Electricity BoardManickampalayam2.The Executive EngineerOperation and MaintenanceTamil Nadu Electricity BoardTiruchengodeNamakkal District3.The Superintending EngineerTamil Nadu Electricity BoardMettur DamSalem District..RespondentsCivil Miscellaneous Appeal is filed against the order dated16.8.2002 (received on 7.9.2002) made in W.C.No.531 of 2000 on thefile of the Commission for Workmen's Compensation and DeputyCommissioner of Labour, Salem. for appellants : Mr.N.Manokaranfor respondents : Mr.N.Muthusamy (for R1 to R3)JUDGMENTThe allegations found in the Claim Petition may succinctly be statedas follows: https://hcservices.ecourts.gov.in/hcservices/ On 6.9.2000, at about 13.00 hours one Murugan, son of theapplicants was working in an electrical post in Nallakumarapalayamand met with a fatal accident. After the accident, he was admittedto the Government Hospital at Namakkal and then he was referred toSalem Government Hospital for further treatment. On the way to Salemhe died. The accident arose out of and in the course of hisemployment under the first opposite party. He was employed as acontract labourer by the first opposite party for about four years.A case in Crime No.172/2000 under Section 174 I.P.C., was registeredon the file of Velagoundanpatti police station and the post-mortemreport shows that he died due to electric shock. He was aged only 23years at the time of his death. He was the only son of theapplicants. He was paid Rs.75/- per day and was earning more thanRs.2,250/- per month. He was in the list as the contract labourerand he was the first person to be made permanent when vacancy arisesand he would get more than Rs.3,000/- per month. Notice of theaccident was not served on the opposite party since the firstopposite party himself gave a complaint before the police station.He has knowledge about the accident and death of Murugan. Hence, thecompensation of Rs.3,00,000/- is prayed for.2.In the counter filed by the first opposite party it isstated that it is true that Murugan was contract labourer attendingwork such as excavation of pits, erection of electrical posts anddragging of line etc at Manickampalayam (O&M) Section for the pastfour years. The accident is admitted but it is denied that itoccurred during the course of employment on 6.9.2000. The firstrespondent did not allot any work to Murugan since he had gone toTiruchengode, O&M Rural Section before 8.00 a.m. for attending massraid and only after hearing of the accident he went to NamakkalGovernment Hospital and saw the condition of Murugan. On that day,he did not go to Manickampalayam area. It is understood that thedeceased climbed the electrical post in front of the house to rectifythe street light on his own accord for lighting the area in front ofhis house and he was not at all engaged for doing any work on thatday. It is not true to say that Murugan died due to electricalshock. In the post-mortem report it is mentioned that he died due tomechanical injuries. It is also not admitted that he was paidRs.75/- per day. He was not at all engaged on that day for doingdepartmental work. Hence, the petition has to be dismissed.3.Considering the documentary piece of evidence and the oralevidence on record the Deputy Commissioner of Labour VII, Salemdismissed the application under an observation that Murugan did notdie in the course of or out of employment. It is admitted fact thatthe deceased was a contract labourer under the first respondent. Butit is the definite and specific case of the first respondent that on6.9.2000 he did not allot any work to Murugan to be attended for the https://hcservices.ecourts.gov.in/hcservices/ department and he was not at all present in Nallakumarapalayamvillage but he had gone to Tiruchengode area for attending mass raid.It is further stated by the first respondent that the deceasedclimbed the electrical post in front of his house to attend somerepairs in order to make the light to burn. In this regard, thesecond applicant, the father of the deceased would say that theelectric post is situated in front of her house which is 30 feet faraway from his house. He climbed the electric post for repair. Inthe cross-examination, he has further added that he executed the saidwork under the instruction of wireman. It is stated by the firstrespondent that the work allotted to the contract labourers are,excavating pits and to erect the poles. Even though it is notspecifically mentioned on behalf of the respondents that checking theelectric posts nor make good the disconnection, certainly it is thework of a wireman. It is pertinent to state that the petition issilent in this regard, that is to say, Murugan climbed on theelectric post under the instruction of a wireman. Further, P.W.1 hasnot stated in his chief-examination about this aspect. Even he hasnot mentioned the name of the wireman in his evidence.4.He has further stated that if a person climbs on a post, hehas to wear the gloves and tie a rope over his leg. One has to takenecessary precautions before he climbs the electric post. Theapplicants have not taken any steps to bring the wireman whoallegedly instructed Murugan to climb the post nor the contractorunder whom Murugan worked.5.On consideration of the factual aspects available in thismatter, it is discernible that the deceased was not at all attendingto the work given by the department. It is also not shown that heclimbed the electric post under the instruction of a wireman and itis also not known whether the contractor directed him to do the work.It is definite that the first respondent had not at all given anywork for him to climb the electric post.6.The learned counsel for the appellants Mr.N.Manokaran wouldgarner support from a decision of this Court in S.E., CUDDALOREELECY.DIST.CIRCLE, T.N.E.B. & ANR. V. PAVUNAMMAL & OTHERS (2006(2)TN MAC 323) wherein the learned single Judge of this Court hasobserved thus:"11. From the above, it is seen that Section 12contemplates that for the execution by or under theContractor of the whole or any part of any work which isordinarily part of the trade or Business of the principal,the principal shall be liable to pay, to any workmanemployed in the execution of the work, any Compensationwhich he would have been liable to pay." https://hcservices.ecourts.gov.in/hcservices/ Section 12 of Workmen's Compensation Act is with reference to theliability of a contractor and a principal employer. In case if theapplicants are able to establish that their son died in the course ofor out of employment, then there can be discussion with regard to theliability of the principal. The learned Judge has also referred andfollowed the decision of this Court in MADHANAGOPAL ALIAS MADHAN v.RASIKA RANJANI SABHA(2004 (1) MLJ 277 : 2004(1) TN MAC 398 (DB). Thelearned counsel appearing for the appellants would rely upon aportion of the said Division Bench decision which goes to the effectthat so far as workman is concerned he is entitled to recover thecompensation from the principal employer and the principal employerhas in turn a statutory right to indemnify himself by recovering thesame from the immediate employer and since the contract of employmentin this case is not directly by the Electricity Board, the contractorconcerned has to be shown in order to indemnify the amount. It isfurther held thus:"27.Lastly, in the decision of the Division Benchof this Court in Madhanagopal alias Madhan v. RasikaRajani Sabha, 2004 (1) MLJ 277 : 2004 (1) TN MAC 398(DB), there is a reference to the scope of theprovisions under Section 12 of the Act which says whereany person who employs others or entrusts his work toothers for execution in respect of his affairs orBusiness could very well be proceeded in terms ofSection 12. Section 12 obviously includes that theliability for Compensation is ultimately of Contractoror employer who engaged the workman. So far as theworkman is concerned, he is entitled to recover the samefrom the Principal Employer. The Principal Employer hasin turn a statutory right to indemnify himself byrecovering the same from the immediate employer. Evenassuming that the above decision is applicable to thepresent case, the Principal Employer in this case is theTamil Nadu Electricity Board. Therefore, so far as theworkman is concerned, he is entitled to recover the samefrom the Principal Employer and the Principal Employerhas in turn a statutory right to indemnify himself byrecovering the same from the immediate employer. Sincethe contract of employment in this case is not directlyby the Electricity Board, the Contractor concerned hasto be shown in order to indemnify the amount."Adverting to the facts in this case, there is no evidence to showthat as per the instructions of the contractor or wireman, Muruganclimbed on the electric post. Hence, the appellants could not takerecourse to the said decision https://hcservices.ecourts.gov.in/hcservices/

7.The learned counsel for the appellants also placed relianceupon the Division Bench decision of this Court in 2006(1) M.L.J. 83(MADRAS DOCK LABOUR BOARD v. K.GEETHA) wherein in para 20, it isobserved as follows:"20.Of course, it is true that the burden of proofrelating to the death caused by accident would rest upon theworkman to prove that the accident arose out of employmentas well as in the course of employment. But, it is notnecessary for the workman who comes to the Court to prove itby direct evidence. It may be inferred when the factsproved justify the inference. Though it is impossible tolay down any rule as to the degree of proof which issufficient to justify an inference, the evidence must besuch as it would induce a reasonable man to draw the saidinference."Even as per the abovesaid decision, if the applicants are unable toprove the case by direct evidence, the facts available in a caseshould be adequate to comprehend that his case is proved. But in thecase on hand, no such materials are available so as to infer that atthe time of accident the deceased was under employment. In otherwords, there is nothing to show that he died in the course of and outof employment. There is no connection between the employment and thedeath caused to Murugan as a result of the accident nor the deathtook place during the currency of employment.8.In the light of the abovesaid observations, this Courtreaches a conclusion that the order passed by the Deputy Commissionerof Labour does not suffer from any infirmity so as to call forinterference from this Court. The observation of the forum belowdeserves to be confirmed and it is accordingly confirmed and theappeal is devoid of merits and is liable to be dismissed.9.Accordingly, the Civil Miscellaneous Appeal is dismissed.No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sal https://hcservices.ecourts.gov.in/hcservices/ To1. The Deputy Commissioner of Labour, Salem.2. The Section Officer, High Court, Madras.+ 1 CC To Mr.N.Manokaran, Advocate SR NO.51941+ 1 CC To Mr.N.Muthuswaami, Advocate SR NO.51936 Judgment in C.M.A.No.2799 of 2002SSV {CO}TP/3.10.08