P. Rajan v. Chennai Petroleum Corporation

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.11.2011C O R A MTHE HONOURABLE MR. JUSTICE B.RAJENDRANC.M.A. No. 2003 of 2009P. Rajan.. AppellantVersus1. Chennai Petroleum Corporation rep. By the Chief Manager (Personnel) Manali, Chennai – 600 0682. The Construction Manager Engineering Project India Limited Chennai Petroleum Corporation Manali, Chennai – 600 0683. P & C Constructions Private Limited P & C Garden, Nolambur Maduravoyal Post Chennai – 602 1024. The New India Assurance Company Limited No.45, 5th Floor, Moore Street Chennai – 600 0015. The Commissioner for Workmen's Compensation-II DMS Campus, Teynampet Chennai – 600 018.. Respondents Appeal filed under Section 30 of The Workmen's CompensationAct, 1923 against the Order dated 13.09.2007 of the Commissioner forWorkmen's Compensation-II, Chennai in W.C. No. 273 of 2005.For Appellant :Ms. Anna MathewFor Respondents :Dr. G. Krishnamurthy for Mr. A. Thirumaran for R3JUDGMENTThe claimant in W.C. No. 273 of 2005 before the DeputyCommissioner-II under the Workmen's Compensation Act is the appellantin this appeal. At the time of admission of this appeal on30.07.2009, the following substantial questions were framed forconsideration in this appeal namely https://hcservices.ecourts.gov.in/hcservices/ (i)Whether the 5th respondent is justifiedin reducing the wages of the appellant by applyingthe minimum wages prescribed by the Government fortheyear 2000 when the accident occurred in 2002?(ii) Whether the 5th respondent isjustified in ordering interest only in the eventof the respondents not depositing the amountawarded, when Section 4A(3) of the Workmen'sCompensation Act, 1923 specifically states thatinterest would accrue within one month from thedate it fell due?2. The claim petition was filed by the applicant contendingthat on 20.05.2002, he joined the services with the first oppositeparty/first respondent herein through its contractors, therespondents 2 and 3 herein. According to the applicant, he wasengaged as a fitter by the opposite parties/respondents 2 and 3herein. While so, the next day of his engagement i.e., on 21.05.2002at about 6.30 pm, he sustained injuries in an accident during thecourse of his employment. The injuries are in the nature of a crushinjury on his left leg and a posterior fractured dislocated righthip. Immediately, the applicant was taken to the hospital run by thefirst respondent herein at Manali, where, after initial treatment, hewas taken to Stanley Medical College and Hospital, Chennai.Thereafter, the applicant was taken to Apollo Hospital, Chennai wherehe was admitted for four days and during the course of his treatment,the applicant's left foot was amputated. Thereafter, the applicantwas discharged from Apollo Hospital and again admitted in IndianHospital, Arumbakkam, Chennai. Once again, the applicant underwent asurgery and his left leg was amputated from the ankle region in thathospital. The applicant's hip was also dislocated due to theaccident and was operated upon at the Indian Hospital. The applicantwas treated at Indian Hospital from 25.05.2002 till 05.08.2002, whenhe was discharged. The claimant's disability was assessed at 70% bythe Doctor. According to the applicant, he sustained injuries duringthe course of his employment under the third respondent and the thirdrespondent also insured the employees working under him with thefourth respondent, including the applicant. Therefore, the claimantfiled the claim petition claiming Rs.4,47,400/- as compensation forthe injuries sustained by him in the accident.3. The first opposite party as well as the third oppositeparty filed their counter statement before the Deputy Commissioner ofLabour and opposed the claim petition on various grounds. On behalfof the insurance company/fourth respondent herein, it wasspecifically contended that they are liable for payment ofcompensation to the extent to which policy coverage is available tothe workmen as per the premium amount paid by the third respondentand they are not liable for payment of compensation amount anythingmore than the coverage available under the policy.4. The Deputy Commissioner for Workmen's Compensation-II, bythe impugned award dated 13.09.2007, determined the compensationamount payable to the applicant/appellant at 2,32,817/- out of which https://hcservices.ecourts.gov.in/hcservices/ the third respondent herein was directed to pay Rs.1,63,814/- and thefourth respondent was directed to pay Rs.69,003/-. As against thesame, the present appeal is filed by the applicant/ appellant.5. The learned counsel appearing for the applicant/appellantwould contend that the applicant sustained injuries in his left legfoot and he was admitted in the hospital for a period of about fourmonths. During the course of treatment, the applicant's left footwas amputated and thereafter, the applicant underwent a surgery andhis left leg was amputated from the ankle region. After treatment,there was a reduction of the right leg by 4 inches and because of theinjuries caused to him, the applicant could not work as before. TheDoctor who was examined before the Deputy Commissioner of Labourassessed the disability at 70% for the left leg and 10% for therestriction of right leg movement. However, the Deputy Commissionerof Labour had taken only 70% of the disability and awarded thecompensation amount. 6. The grievance of the appellant is two fold namely (i) whilefixing the compensation, the Deputy Commissioner of Labour, for thepurpose of calculation, taken only the minimum wages previalingduring the year 2000 that too when the accident took place in theyear 2002. According to the counsel for the appellant, there is noquestion of applying the minimum wages in view of the fact that theapplicant/appellant had let in clear cut evidence before the DeputyCommissioner of Labour stating that he was paid wages at the rate ofRs.150/- per day and there is no specific denial on the part of therespondents. In the absence of any denial on the part of therespondents, the Deputy Commissioner of Labour ought not to havetaken the minimum wages for determining the compensation amount (ii)The Deputy Commissioner of Labour awarded interest payable by therespondents only in the event of their failure to deposit thecompensation amount within one month from the date of award at therate of 12% per annum, whereas, under Law, the applicant/appellant isentitled for interest atleast from one month from the date ofaccident as per the judgment of the Division Bench of this Court in(N. Ganesan vs. Tmt. Thilagavathi and others) 2010 (3) Law Weekly 89.Hence, on both these grounds, the appellant has preferred thisappeal. 7. The learned counsel appearing for the third respondentwould contend that the Deputy Commissioner of Labour has rightlytaken note of the minimum wage prevailing during the year 2000 fordetermining the compensation amount in the absence of any evidenceproduced by the applicant to show the actual wages received by him.Therefore, he would support the award passed by the DeputyCommissioner of Labour.8. I heard the counsel for both sides and perused thematerials available on record. The opposite parties/respondents 1 to4 herein admits the date, time and manner in which the accidentoccurred. The insurance company/fourth respondent also admits theirliability to pay the compensation amount to the extent of payment ofpremium paid by the employer seeking insurance coverage to theiremployees. Neither the employer/respondents 1 to 3 nor the insurance https://hcservices.ecourts.gov.in/hcservices/ company/fourth respondent have filed any appeal as against theimpugned award passed by the Deputy Commissioner of Labour and thisappeal is at the instance of the applicant/appellant seekingenhancement of the compensation amount.9. The applicant/appellant has come forward with this appealon two grounds namely the Deputy Commissioner of Labour has taken theminimum wages prevailing in the year 2000 when the accident had takenplace in the year 2002. Further, the applicant/appellantspecifically pleaded in the claim petition regarding his monthlyearnings and in the absence of any specific denial by therespondents, the Deputy Commissioner of Labour is not right in takingthe minimum wages prevailing in the year 2000. The next ground ofattack is with regard to payment of interest. The DeputyCommissioner of Labour has passed the impugned award and directedpayment of compensation amount with interest, only in the event offailure on the part of the respondents to pay the compensation amountwithin one month from the date of award. 10. At the outset, I will deal with the second question of lawinvolved in this appeal inasmuch as the said question of law is nomore res integra having been answered by the Division Bench of thisCourt in the decision reported in (N. Ganesan vs. Tmt. Thilagavathiand others) 2010 (3) Law Weekly 89. In this decision, the word"falls due" occurring under Section 4-A of the Workmen's CompensationAct was considered by the Division Bench of this Court and held thatthe words "falls due" means interest for compensation amount wouldaccrue 30 days after the date of the accident and not from the dateof quantification/ orders passed by the Commissioner for Workmen'sCompensation. In Para No.27, the Division Bench held as follows:-"27.In the result, the reference is answeredas follows:-i.The word "falls due" occurring underSection 4-A of the Workmen's Compensation Act,1923 in the light of the ratio laid down in thelarger Bench decision of the Honourable SupremeCourt of India reported in 1976 (1) SCC 289 – inPratap Narain Singh Deo vs. Srinivas Sabata andanother and 2000 ACJ Page 5 (SC) – Kerala StateElectricity Board vs. Valsala, K means thatinterest for compensation amount would accrue 30days after the date of the accident and not fromthe date of quantification/orders passed by theCommissioner for Workmen's Compensationii.The decisions rendered by the SingleBench of this Court in the decisions reported in(2007) 5 MLJ 1059 : 2007 (2) TN MAC page 98 –Marimuthammal @ Marimuthu and Another vs. R.P.P.Construction (P) Ltd., Chennai and others, 2008(1) TN MAC Page 38 – A. Chairmen vs. A. Thirumeniand another, had laid down the correct propositionin consonance with the ratio laid down by theLarger Bench of the Hon'ble Supreme Court of Indiain the above cited decisions. https://hcservices.ecourts.gov.in/hcservices/ Iii.The Registry is directed to list theseappeals forfinal disposal before the concernedPortfolio Judge."11. The Division Bench of this Court rendered the abovedecision pursuant to a reference made to it to decide the questionwhether the interest is payable from the date of award or one monthfrom the date of accident. Since the Division Bench, after elaborateconsideration of all the decisions in this aspect had categoricallyheld that interest will automatically accrue within one from the dateof accident in so far as the claim made under the provisions ofWorkmen's Compensation Act is concerned, the second question of lawframed for consideration in this appeal is answered in favour of theapplicant/appellant and against the respondents. Consequently, theapplicant/appellant is entitled to payment of interest on expiry of30 days from the date of accident namely 21.06.2002 till the date ofdeposit.12. The learned counsel for the third respondent, by relyingupon the decision reported in (Oriental Insurance Company Limited vs.Mohd. Nasir and another) 2009 6 SCC 280 would contend that the word"falls due" would mean that interest is payable only from the date ofdefault and not within 30 days from the date of accident. Such acontention of the counsel for the third respondent cannot becountenanced. Even in that case, the Honourable Supreme Courtcategorically held that interest is payable at the rate of 7% perannum from the date of filing of the application till the date ofaward and thereafter the rate of interest is payable in terms of theorder to be passed by the Commissioner of Labour. In any view of thematter, the Division Bench of this Court had considered all therelevant decisions, including the decision rendered by the LargerBench of the Honourable Court and held that interest is payable afterone month from the date of accident and therefore also the contentionof the counsel for the third respondent is rejected.13. The next question of law framed for consideration in thisappeal namely the first question of law is whether the DeputyCommissioner of Labour is justified in taking the minimum wagesprevailing in the year 2002, when the accident itself took place inthe year 2000 and when the applicant/appellant had pleaded that hewas receiving a sum of Rs.150/- per day as wages. The maincontention raised by the applicant/appellant is that the DeputyCommissioner of Labour fixed the minimum wages at the rate ofRs.3,542.70 which was prevailing in the year 2000, whereas, theaccident took place in the year 2002 and in the absence of anydocumentary evidence available to show what was the minimum wagesprevailing in the year 2002. The argument of the counsel for theappellant is plausible. There is no dispute as regards the incomesaid to have been received by the applicant/appellant because therespondents have not specifically disputed it in their counter. Inthe counter filed by the third respondent/owner before the DeputyCommissioner of Labour, there is no whisper about the wages at all.Therefore, there is a clear admission by the respondents in so far asto the wages received or payable to the applicant/appellant. Asregards the counter filed by the insurance company, only a vague https://hcservices.ecourts.gov.in/hcservices/ denial was made, both regarding the age of the applicant/appellantand the wages payable to him. In the counter of the thirdrespondent, it was only stated that the applicant/appellant is put tostrict proof of the age as well as wages by producing documentaryevidence. Therefore, it is clear that there is no specific denialmade by the respondents 1 to 4 with regard to the income of theapplicant/appellant. Even in the cross-examination of theapplicant/appellant, there was no specific question put to himregarding the wages. Therefore, the argument of the counsel for theapplicant/appellant that admitted facts need not proved is wellfounded. 14. The Deputy Commissioner of Labour, in the impugned award,has only stated that since there is no documentary proof for theactual wages received by the claimant, it is necessary to take theprevailing minimum wages of the year 2000 for the purpose ofdetermining the compensation amount. There is no reason assigned bythe Deputy Commissioner of Labour as to why even the minimum wagesprevailing during 2000 was taken when the accident itself taken placeonly during 2002. The applicant/appellant, in the claim petitionadmitted that the actual salary received by him was Rs.4,000/- andthe sum of Rs.4,000/- ought to have been taken by the DeputyCommissioner of Labour for determination of the compensation.Accordingly, the first question of law is also answered in favour ofthe applicant/appellant and against the respondents. 15. Out of the sum of Rs.4,000/- taken as income of theapplicant/appellant, the liability of the insurance company/fourthrespondent is restricted and fixed at Rs.1,050/- to the extent towhich premium was paid and the employer's liability is fixed to theextent of the balance amount of Rs.2,940/-. On this basis, thecompensation is arrived at as follows:-(i) Employer's/third respondent liability : Rs.4000-1050 = Rs.2,950/- Rs.2,950 X 60 / 100 X 156.46 X 70/100 : Rs.1,93,854/-(ii) Liability of fourth respondent : Rs.1,050/- Rs.1050 X 60/100X156.47X70/100 : Rs.69,003/ 16. In the result, the appeal filed by the applicant/appellantis allowed and the questions of law are answered in favour of theapplicant/appellants and against the respondents. The liability ofthe third and fourth respondent are determined as mentioned above andthe respective compensation amount as determined in this appeal isdirected to be deposited by them together with interest at the rateof 12% per annum from 21.06.2002 till the date of deposit within aperiod of eight weeks from the date of receipt of a copy of thisjudgment. No costs. Sd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rshTo1. The Commissioner for Workmen's Compensation-IIChennai 2. The Deputy Commissioner (II) of Labour, Chennai.+ 1 cc to Mr.A. Thirumaran, SR.73324+ 1 cc to M/s. R. Vaigai, SR.73361CMA No. 2003 of 2009NR(CO)Eu 21.12.11