Bhaskar v. G.Selvaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.04.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1620 of 2001andC.M.P.No.21537 of 2001Bhaskar...AppellantVs.1. G.Selvaraj2. S.Kaliammal3. The Commissioner Corporation of Chennai Rippon Building, Chennai - 34. The Managing Director Chennai Water Supply and Sewerage Board No.1, Pumping Station Road Chintadripet, Chennai 600 002...RespondentsThis Civil Miscellaneous Appeal has been filed under Section30 of the Workmen's Compensation Act, 1923 to set aside the orderdated 06.11.2000 in W.C.No.263 of 1997 on the file of theCommissioner for Workmen's Compensation-II, Deputy Commissioner ofLabour - II, Chennai.For Appellant: Mr.N.KarthikeyanFor Respondents: Mr.V.Sakthivel (for R1 & R2) Mr.V.Bharathidasan (for R3)J U D G M E N TThis civil miscellaneous appeal has been preferred underSection 30 of the Workmen's Compensation Act, 1923 against theorder of the Deputy Commissioner of Labour-II (Commissioner forWorkmen's Compensation-II), Chennai-600 006 dated 06.11.2000 madein W.C.No.263/1997.2. The 2nd opposite party before the Commissioner for Workmen'sCompensation is the appellant herein. The claimants before theCommissioiner for Workmen's Compensation are the respondents 1 and2 in the appeal. The first and third opposite parties in the WCare the respondents 3 and 4 in the appeal. 3. For the death of one Sivakumar son of the respondents 1 and2 herein, they made a claim before the Commissioiner for Workmen's https://hcservices.ecourts.gov.in/hcservices/ Compensation-II (Deputy Commissioiner of Labour-II), Chennai-600006 under Section 10(1) of the Workmen's Compensation Act, 1923 forcompensation. The undisputed fact is that the deceased Sivakumar,while clearing the drainage blocks through the man-hole at thejunction of the first and second main Roads, Shaik Abdullah Nagar,Chennai-92 on 03.10.1996 at about 1.45 p.m he got deep into drainwater; that though the persons nearby were able to get him out inan unconscious condition and admitted him in the GovernmentHospital, Royapettah, the doctors could not save his life and thathe died of Asphyxia due to drowning within a couple of hours afteradmission in the said hospital for treatment.4. Contending that he was employed under the appellant herein(second opposite party in the WC) on a monthly salary of Rs.1,500/-and that the above said accident had occurred out of and duringthe course of his employment under the second opposite party (theappellant herein), the claimants (respondents 1 and 2 herein) hadpreferred the above said claim in W.C.No.263/1997. It was theircontention in the claim petition that the appellant herein (secondopposite party) was the immediate employer whereas principalemployer was the third respondent herein (first opposite party inWC), namely the Commissioner, Corporation of Chennai. Contendingfurther that the appellant herein (second opposite party) did thejob of clearing the blocks in the drainage channel employing thedeceased Sivakumar on behalf of the principal employer, namely theCommissioiner, Corporation of Chennai, the respondents 1 and 2herein (claimants in the WC) had made the claim initially againstthe appellant herein and the respondent no.3 alone. The thirdrespondent (first opposite party) did not file any counterstatement and remained exparte. The appellant herein/secondopposite party entered appearance and filed a counter statementdenying the averments found in the claim application regardingemployment of the deceased Sivakumar. He had also contended thatthere was no connection between himself and the third respondentherein (first opposite party) and that even if it could be assumedthat the appellant was the immediate employer of the deceased, the3rd respondent herein/first opposite party could not be termed asthe principal employer. It was also his contention in the counterstatement that he was only a plumber under the 4th respondentherein, namely the Managing Director, Chennai Water Supply andSewerage Board, Chennai. 5. In view of the said stand taken by the appellant/secondopposite party, the respondents 1 and 2 herein/claimants took stepsto implead the Managing Director of Chennai Water Supply andSewerage Board as the third opposite party and accordingly thefourth respondent herein was impleased as the third opposite partyin the WC. The fourth respondent herein/third opposite party fileda counter statement contending that license was granted to theappellant/second opposite party to give water or sewerageconnections to the buildings from the main lines and that under thelicense he did not have any right or obligation to clear any blockin the main sewerage channel; that the said job was being done bythe fourth respondent (third opposite party) directly through their https://hcservices.ecourts.gov.in/hcservices/ employees and that hence if at all the deceased Sivakumar had beenengaged by the appellant/second opposite party for the saidpurpose, the same was unauthorised and hence the fourthrespondent/third opposite party could not be held liable as theprincipal employer.6. In the light of the above said contentions, the partieswent for enquiry. The first respondent herein/first claimant byname Selvaraj was examined as PW-1. Two persons named Thomas andSubramani were examined as PW-2 and PW-3 respectively. As many aseleven documents were marked as Ex.A1 to A11 on the side of theclaimants. The appellant was examined as RW-1 and one Mr.IyyanarBharathi was examined as RW-2 and six documents were marked asEx.R1 to R6 on the side of the appellant herein/2nd opposite party.7. The Deputy Commissioner of Labour-II, Chennai, in hiscapacity as Commissioner for Workmen's Compensation-II, afterconsidering the above said evidence came to the conclusion that thethird respondent herein (first opposite party), namely theCommissioner, Corporation of Chennai did have no connection eitherwith the deceased or with the appellant/first opposite party; thatthe maintenance of sewerage was not the job of the Corporation ofChennai and that the same was the responsibility of the fourthrespondent herein/third opposite party, namely the ManagingDirector, Chennai Metro Water Supply and Sewerage Board. TheCommissioner for Workmen's compensation also held that though theappellant/second opposite party was the licensed plumber, havingbeen given license by the fourth respondent/third opposite party togive water and sewerage connections to the houses from the mainlines, under the said license the appellant/second opposite partyhad not been authorised to undertake the job of clearing any blockfound in the main sewerage channel. The Commissioner also heldthat the same was looked after by the fourth respondent/thirdopposite party directly through the employees of the Board.However, the Commissioner for Workmen's Compensation held that theclaimants were able to prove that the deceased was under theemployment of the appellant/second opposite party and it was theappellant who engaged the deceased to go into the man-hole to clearthe blocks and that hence the appellant/second opposite party alonewas liable to pay compensation to the respondents 1 & 2/claimants.8. The Commissioner assessed the wages of the deceased at therate of Rs.1,050/- per month based on District Collector's fixationof wages for the year 1996 as Rs.35/- in the absence of minimumwages fixed by the Government. Taking the age of the deceased tobe 25, 216.91 was selected as the relevant factor and the totalcompensation was worked out at Rs.1,13,878/-. The Commissioinerfor Workmen's Compensation-II, Chennai ultimately passed an orderdirecting the appellant/second opposite party to deposit the abovesaid sum within 30 days from the date of receipt of the said orderwith a further direction that in case of default in depositing thesaid amount within 30 days, the same shall carry an interest at therate of 12% per annum from the date of filing of the claimpetition. So far as the respondents 3 and 4 in the appeal (first https://hcservices.ecourts.gov.in/hcservices/ and third opposite parties) are concerned, the claim petition wasdismissed. 9. Aggrieved by and challenging the said award dated06.11.2000 directing the appellant to pay compensation, the presentcivil miscellaneous appeal has been filed under Section 30 of theWorkmen's Compensation Act, 1923, on various grounds set out in thememorandum of civil miscellaneous appeal.10. This court heard the submissions made by Mr.N.Karthikeyan,learned counsel for the appellant and Mr.V.Sakthivel, learnedcounsel for the first and second respondent and that ofMr.V.Bharathidasan, learned counsel for the third respondent. Thematerials available on record submitted by the lower authority forreference in this appeal were also perused.11. Section 30 of the Workmen's Compensation Act, 1923provides that an appeal shall lie from the orders of aCommissioiner for Workmen's Compensation only on a substantialquestion of law. Section 30 of the Workmen's Compensation Act,1923 reads as follows:" 30. Appeals — (1) An appeal shall lie to the HighCourt from the followings orders of a Commissioiner,namely — (a)an order awarding as compensation a lump sumwhether by way of redemption of a half-monthly payment orotherwise or disallowing a claim in full or in part for alump sum;(aa)an order awarding interest or penalty underSection 4-A;(b)an order refusing to allow redemption of a half-monthly payment;(c) an order providing for the distribution ofcompensation among the dependents of a deceased workman,or disallowing any claim of a person alleging himself tobe such dependant;(d) an order allowing or disallowing any claim forthe amount of an indemnity under the provisions of sub-section (2) of Section 12; or(e)an order refusing to register a memorandum ofagreement or registering the same or providing for theregistration of the same subject to conditions;Provided that no appeal shall lie against any orderunless a substantial question of law is involved in theappeal and, in the case of an order other than an ordersuch as is referred to in clause (b), unless the amount indispute in the appeal is not less than three hundredrupees:Provided further, that no appeal shall lie in anycase in which the parties have agreed to abide by thedecision of the Commissioner, or in which the oder of the https://hcservices.ecourts.gov.in/hcservices/ Commissioner gives effect to an agreement come to by theparties.Provided further that no appeal by an employer underclause (a) shall lie unless the memorandum of appeal isaccompanied by a certificate by the Commissioner to theeffect that the appellant has deposited with him theamount payable under the order appealed against.(2) The period of limitation for an appeal under thissection shall be sixty days.(3) The provisions of Section 5 (the Limitation Act,1963 (36 of 1963), shall be applicable to appeals underthis section."12. The first proviso to clause 1 makes it clear that noappeal shall lie against any order of the Commissioner forWorkmen's Compensation unless a substantial question of law isinvolved in the appeal. The following were the substantialquestions of law framed by this court at the time of admission.1. Whether the parents are dependants as definedunder Section 2(1)(d) of the W.C.Act 1923?2. In the absence of any evidence to prove dependenceon the income of the deceased, whether the parents aredependents as defined under the W.C.Act, 1923?3. Whether the applicant can be held liable forcompensation where there was no employer-employeerelationship?4. Even an assumption of employer-employeerelationship without admitting under Sect.2(n) of theW.C.Act 1923 whether the appellant is liable as the natureof work done by the deceased was not the work trade orbusiness of the applicant?13. Let us now take up the said questions framed assubstantial questions of law for consideration one by one. Thequestion framed as the 4th substantial question of law involved inthis case does not need elaborate consideration. The appellant(second opposite party) is admittedly a plumber licensed by theChennai Metro Water and Sewerage Board to give water and sewerageconnections to the buildings from the main lines. Therefore wecannot say that the work of clearing the blocks found in thesewerage channels is totally unconnected with the nature of workdone or trade or business carried on by the appellant. Whether hewas given authority by the Sewerage Board or not is not relevantfor determination of the fourth substantial question. What isrelevant is whether the work allegedly entrusted to the deceased bythe appellant is connected with trade or business of the appellant.As it has been admitted that the deceased is a plumber licensed by https://hcservices.ecourts.gov.in/hcservices/ the Managing Director, Chennai Water Supply and Sewerage Board andthat by such license he was authorised to give water and sewerageconnections to the buildings from the main lines, this court comesto the conclusion that, if at all the work of clearing the blocksfound in the main sewerage channel was entrusted by the appellantto the deceased, the same cannot be said to be totally unconnectedwith the trade or business of the appellant. Therefore the 4thsubstantial question of law has to be necessarily answered againstthe appellant and in favour of the respondents 1 and 2/claimants.14. The first and second substantial questions framed by thiscourt at the time of admission are in effect one and the same.Hence they are take up together for discussion. It is thecontention of the appellant that the claimants being parents of thedeceased, in the absence of any evidence to the effect that theywere dependents of the deceased, the award of compensation underthe Workmen's Compensation Act in their favour cannot be sustained.The learned counsel for the appellant contends that neither in theclaim petition nor in the evidence, clear-cut averments were madeto the effect that the respondents 1 and 2/claimants 1 and 2 werein fact dependent upon the income of the deceased and thus theywere dependents of the deceased.15. Section 2(d) of the Workmen's Compensation Act, 1923defines the term dependent. It reads as follows:(d) "dependent" means any of the following relativesof a deceased workman, namely —(i)a widow, a minor (legitimate or adopted) son, anunmarried (legitimate or adopted) daughter, or a widowedmohter; and(ii)if wholly dependent on the earnings of theworkman at the time of his death, a son or a daughter whohas attained the age of 18 years and who is infirm;(iii) if wholly or in part dependant on the earningsof the workman at the time of his death —(a) widower(b) a parent other than a widowed mother,(c) a minor illegitimate son, an unmarriedillegitimate daughter or a daughter (legitimate orillegitimate or adopted) if married and a minor or ifwidowed and a minor,(d)a minor brother or an unmarried sister or awidowed sister if a minor,(e) a widowed daughter-in-law.(f) a minor child of a pre-deceased son,(g) a minor child of a pre-deceased daughter whereno parent of the child is alive, or(h) a paternal grandparent if no parent of theworkman is alive;Explanation — For the purposes of sub-clause (ii) anditems (f) and (g) of sub-clause (iii), references to ason, daughter or child include an adopted son, daughterof child respectively. https://hcservices.ecourts.gov.in/hcservices/

16. A widowed mother becomes a dependent without any furtherproof of dependency as per Sub clause (i) of Section 2(d) whereas,as per Section 2(d) sub-clause (iii)(b), a parent other than awidowed mother will become a dependent only if he/she is wholly orin part dependent on the earnings of the workman at the time of hisdeath. In the case on hand, the respondents 1 and 2herein/claimants 1 and 2 are admittedly the parents of the allegedworkman, namely the deceased Sivakumar. They don't come underSection 2(d) sub clause (i). As they come under sub clause(iii) ofSection 2(d) it must be proved that they were either wholly or inpart dependent on the earnings of the deceased at the time of hisdeath. No where in the claim petition, as rightly pointed out bythe learned counsel for the appellant, it has been stated that anyone of the respondents 1 and 2 herein/claimants 1 and 2 was eitherwholly or in part depending on the earnings of the workman. Eventhe first respondent herein/first claimant, in his evidence as PW-1has not stated anything about the contribution of the earnings ofthe deceased to the claimants. Nothing is there in his evidence toshow that the respondents 1 and 2/claimants did receive anymonetary support from the deceased or that they were either whollyor in part depending upon his earnings. Even the other witnessesexamined on the side of the claimants, namely PW-2 and 3 have notspoken anything about the dependency of the respondents 1 and 2/claimants 1 and 2 on the deceased. Therefore, this court has noother option except to accept the contention of the learned counselfor the appellant that the respondents 1 and 2/claimants 1 and 2have not proved that they were depending on the income of thedeceased either in whole or in part to make themselves entitled toclaim compensation under the Workmen's compensation Act for thedeath of the deceased. 17. In support of his contention the learned counsel for theappellant drew the attention of this court to the judgment of alearned single judge of this court in The Superintending Engineer,Tiruvanamalai Electricity System, North Arcot District Vs.S.Kannaiyan & 2 others reported in 1999 (III) CTC 416. In the saidcase the learned single judge has clearly analysed the differencebetween clause (i) of Section 2(d) and other clauses of Section 2(d) and has clearly observed that only those who are found inClause (i) would be the dependents without any further proof ofdependency on the earnings of the workman and that those who comeunder the subsequent clauses, namely clause (ii) and (iii) have toprove their dependency on the earnings of the deceased workman tomake themselves entitled to claim compensation. I am in completeagreement with the observations made by the learned single judge inthe above said case. Any one coming under clause (i) of Section 2(d) shall be the dependent without any further proof of dependencyon the earnings of the deceased workman. Anyone coming underclause (ii) of Section 2(d), namely a son or daughter who hasattained the age of 18 years and who is infirm shall be a dependentprovided he or she was wholly dependent on the earnings of theworkman at the time of this death. So far as the other persons whocome under clause (iii) are concerned, to be recognised asdependents entitled to claim compensation, they have to prove that https://hcservices.ecourts.gov.in/hcservices/ they were either wholly or in part dependent on the earnings of theworkman at the time of his death. 18. The respondents 1 and 2/claimants 1 and 2 come under Subclause (b) of Section 2(d)(iii). As such unless they prove thatthey were either wholly or partly depending upon the earnings ofthe deceased, they cannot maintain a claim and their claim forcompensation under the Workmen's Compensation Act has to benegatived. In this case, as pointed out supra, there is noevidence to show that they were either wholly or partly dependingupon the earnings of the deceased. Therefore, the first and secondsubstantial question framed, have to be answered in favour of theappellant and the appeal shall succeed on those substantialquestions of law.19. The third substantial question framed at the time ofadmission is that whether the respondents 1 and 2/claimants wereable to prove the jural relationship of employer-employee betweenthe appellant and the deceased Sivakumar. Of course it is thespecific averment made in the claim petition that the deceased wasemployed under the appellant. Some kind of evidence has also beenadduced to substantiate the contention of the respondents 1 and2/claimants 1 and 2 to prove that the deceased was an employeeunder the appellant at the time of accident and that the accidentitself took place out of and in the course of his employment underthe appellant. The same happened to be the evidence of PW-1 to 3.Normally, the High Court, in appeal under Section 30 of theWorkmen's Compensation Act, shall not interfere in a finding on aquestion of fact. The Commissioiner for Workmen's Compensation hasgiven a finding on a question of fact that the deceased Sivakumarwas under the employment of the appellant herein. 20. At the outset it may look like a pure question of fact inwhich this court cannot interfere in exercise of its appellatepowers under Section 30 of the Workmen's Compensation Act.However, it has been repeatedly held in a number of cases that aquestion of fact will assume the character of a substantialquestion of law if the finding is perverse. If a finding of factis based on no evidence or based on inadmissible evidence alone oron the basis of the evidence, no reasonable person would havearrived such a conclusion, then such finding, though a finding offact, shall be elevated to the level of a substantial question oflaw. 21. In this case, though there is oral evidence to the effectthat the deceased was under the employment of the appellant/secondopposite party, most parts of the evidence seem to be hearsay.There is no document, not even a scrap of paper to show that thedeceased was employed under the appellant and he was in receipt ofwages from the appellant. However, the respondents 1 and2/claimants have produced Ex.A11 - a copy of the alleged statementof the first respondent/first claimant given to the police attestedby a number of persons. The same seems to be a self-servingdocument created for the purpose of showing that the deceased was https://hcservices.ecourts.gov.in/hcservices/ under the employment of the appellant. The first respondent/firstclaimant, while deposing as PW-1, would state that after theaccident, pursuant to the mediation of panchayatdars the appellantpaid a sum of Rs.20,000/- as compensation to the respondents 1 and2/claimants. The said version of PW-1, was also supported by theparole evidence of PW-3, which was also supported by PW-2. Inorder to substantiate the same Ex.A11 - statement has beenproduced. But it is pertinent to note that the same does notcontain the signature of the appellant, who is said to have paid asum of Rs.20,000/- as compensation to the first claimant. The saidamount was paid according to PW-1 and Ex.P11 on 04.10.1996, namelya day after the death of the deceased. If at all it is true thatthe appellant paid such an amount, then there won't be any occasionfor the respondents 1 and 2/claimants to make a claim forcompensation before the Commissioner for Workmen's Compensation. 22. On the other hand, if the claimants were not satisfiedwith the quantum of compensation allegedly paid by the appellant,they would have chosen to pray for an award of compensation as perthe formula found in the Act minus the said amount already receivedby them. But the claim petition does not contain any reference tosuch panchayat or the alleged payment of a sum of Rs.20,000/- ascompensation. The claim petition also does not make any referenceto Ex.A11 statement. 23. It shall also be pertinent to note that prior to thefiling of the claim petition, the claimants caused a legal noticeto be issued through their lawyer on 04.04.1997, a copy of whichhas been marked as Ex.A9. The acknowledgment has been marked asEx.A10. Even in the said notice, no reference has been made tosuch a payment of Rs.20,000/- or any other amount as compensationby the appellant. The same will clearly make it obvious that as anafterthought only Ex.A11 has been brought into existence. Underthe circumstances, no reasonable person would have arrived at aconclusion that the evidence was sufficient to substantiate thecase of the respondents 1 and 2/claimants that the deceased wasunder the employment of the appellant. Therefore this court comesto the conclusion that the finding of the Commissioiner forWorkmen's Compensation to the effect that the deceased Sivakumarwas employed under the appellant at the time of his death should beheld a perverse finding capable of being interfered with by thiscourt in exercise of its appellate power under Section 30 of theWorkmen's Compensation Act. Therefore, this court comes to theconclusion that the appeal succeeds on the third substantialquestion of law also.24. For all the reasons stated above, this court is of theconsidered view that the order of the Commissioiner for Workmen'sCompensation-II (Deputy Commissioner of Labour-II), Chennai-600006cannot stand the scrutiny of this court and the same deserves to bereversed. 25. In the result the appeal is allowed. Order of theCommissioiner for Workmen's Compensation-II (Deputy Commissioner of https://hcservices.ecourts.gov.in/hcservices/ Labour-II), Chennai-600006 is hereby set aside and the claimpetition made by the claimants shall stand dismissed in itsentirety. Consequently, connected miscellaneous petition is alsoclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarasrTo The Commissioner for Workmen's Compensation-II, (Deputy Commissioner of Labour - II) Chennai - 6Copy to: The Record Keeper, VR Section, High Court, Madras.1 cc To Mr.N.Karthikeyan, Advocate, SR.142181 cc To Mr.V.Bharathidasan, Advocate, SR.14512 C.M.A.No.1620/2001KU(CO)SRA(5/5/2009)