Tamilnadu State TransportCorporation (Salem) Ltd. v. Tmt. Sivakumari & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13..07..2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.2930 of 2004 Tamilnadu State TransportCorporation (Salem) Ltd.,Salemrep.by its Managing Director...Appellant/Respondent Vs.1. Tmt. Sivakumari2. Minor Sundarrajan3. Minor Vimala4. Tmt. Periya Thayee...Respondents/PetitionersThis civil miscellaneous appeal has been filed under Section 30of the Workmen's Compensation Act 1923 against the Judgment andDecree made in W.C.No.284 of 2001 dated 29.7.2004 on the file of theCommissioner for Workmen's Compensation, Salem. For Appellant: M/s. Ravi BharathiFor Respondents: Mr.P. Ganesan J U D G M E N T It is stated in the claim petition that one Govindaraj wasworking as a conductor in the respondent transport corporation inOmalur Branch. First claimant is his wife, 2nd and 3rd claimants arehis children and 4th claimant is his mother. On 27.09.2000 at 6.00p.m. while he was proceeding towards Omalur in his TVS 50 nearKaliyappan land, a known vehicle dashed against him by means of whichhe sustained injuries and after he was removed to Government Hospitalhe died. He was earning Rs.3,500/- and was aged 34 years at the timeof accident. Since the accident took place during the course of andout of the employment, the respondent is liable to pay compensationto the claimants to the tune of Rs.7,00,000/-.2. In the counter filed by the respondent Transport Corporationit is stated that it is not true that the deceased Govindaraj wasworking as conductor in Omalur Branch. On 18.11.1997 he attendedthe interview for the post of 'Daily Paid Conductor'. He was foundfit and selected for the post and was called for training. But he https://hcservices.ecourts.gov.in/hcservices/ was not provided any employment as alleged. The accident as mentionedin the claim petition was not brought to the knowledge of theopposite party. On 27.9.2000 the deceased was not under theemployment of the respondent corporation. It is also denied that onthe way to his work place he met with the accident. It is incorrectto state that he earned Rs.3,500/- as salary and Rs.1,000/- ascollection batta. The claim of Rs.7,00,000/- is highly exorbitantand baseless. The respondent is not liable to pay any compensation.3. The authority below, has analysed the evidence on record andpassed an award directing the opposite party to pay compensationafter adopting the following formula:Age: 34Factor: 199.40Salary: Rs.2,000/-Compensation : Rs.50/100 x 2000 x 199.40 = Rs.1,99,400/-4. Aggrieved against the award, the respondent corporation hasfiled the appeal before this Court. At the time of admission of theappeal the following substantial questions of law were framed:1.Whether the Deputy Commissioner of Labouris right in holding that there was anemployer-employee relationship between theappellant Corporation and the deceased inthe absence of sufficient materials toprove the same?3.Whether the Deputy Commissioner of Labouris right in completely ignoring theevidence of R.Ws.1 and 2 and Ex.M.1,attendance register, before concluding thatthe deceased was an employer of theappellant Corporation?5.Is the Deputy Commissioner of Labour rightin holding that the accident arose out ofand in the course of employment of thedeceased with the appellant Corporation?7.Is the Deputy Commissioner of Labour rightin finding that the salary of the deceasedwas 3,500/- per month and in fixing it at2,000/- per month without any basis?5. It is the contention of the claimants that the deceasedGovindaraj was under employment with the appellant as conductor. Percontra, it is denied by the appellant stating that he was only adaily paid conductor and not a regular employee of the transportcorporation and hence there is no labour and employer relationshipbetween the deceased and the opposite party. https://hcservices.ecourts.gov.in/hcservices/

6. It is the admitted fact that the deceased was a trainee underthe appellant corporation. In this context the learned counsel forthe respondents would draw the attention of this Court to thedefinition of "workman" as in Section 2(1)(n) and 30(1) of Workmen'sCompensation Act 1923, which goes that a person employed as driver,helper, mechanic, cleaner or in any other capacity in connection witha motor vehicle. Even though a person was not employed in a regularbasis as a driver, helper etc., even if he was employed in any othercapacity in connection with the motor vehicle, he has to be termed as"workman" for the purpose of the Act. 7. Learned counsel for the respondents also placed reliance upona decision of the Supreme Court in 2007-I-L.L.J. 5 [Zila SahakariKendra Bank Maryadit v. Shahjadi Begum and others] in which TheirLordships have held that person to whom services of workmen aretemporarily lent, employer was bound to pay compensation for death ofworkman. The relevant portion of the Judgment goes thus:"12. However, the term 'employee' has notbeen defined in the Act. The definition ofemployer, therefore, embraces within its fold notonly a person who employs another eitherpermanently or on temporary basis but also thosewho were in control of the workman temporarilylent or let on hire on them by the person withwhom the workman has entered into a contract ofservice. It is, therefore, a broad definition." 8. In view of the above decision there is no legal embargo forthis Court to hold that the deceased Govindaraj was a workman underthe appellant, even though he was a trainee during the relevantperiod.9. As regards the time during which the accident occurred, adoubt was raised as to whether the time for travel to reach the workplace by the employee has to be excluded from the purview of the dutyperiod. Learned counsel for the respondents submitted that it is inthe pleadings and evidence that the deceased was going to attend hisduty at the time of accident and such journey undertaken by himshould be treated to be in the course of and out of employment. Thisproposition of law has been highlighted in a decision of MadhayaPradesh High Court in 1992 ACJ 496 [General Manager, Western Railwayv. Chandrabai alias Narayanibai and another] in which the learnedJudge has followed a judgment of the Supreme Court to reach aconclusion. The operative portion of the judgment is as follows:"6. In my opinion this argument of thelearned counsel is without any force in view ofthe clear view taken by the Supreme Court in thecase of General Manager, B.E.S.T. Undertaking,Bombay v. Agnes, 1958-65 ACJ 473 (SC), whereinthe Supreme Court has held that when a driver ofa bus was going from his depot after the duty tohis house and vice-versa, the aforesaid coming https://hcservices.ecourts.gov.in/hcservices/ and going should be treated as part of theemployment and when such a driver meets with anaccident while going home from the depot itshould be held that the accident occurred duringthe course of employment.7. In the instant case also the deceased wasgoing to attend his duty from his house. Whilegoing so, he met with an accident. Therefore,the act of the deceased of going from his housefor attending to his duty would be included inthe term employment and, therefore, the learnedtrial Court had not erred in any way in applyingthe notional extension theory to the facts andcircumstances of the case."10. As per the principle laid down by the Supreme Court, it hasto be held that when the deceased undertook a journey from his house,until he reaches his work place, if any thing happens it has to bedecided that such incident took place during the course of and out ofemployment. In this case also when the same principle is applied, ithas to be held that the accident took place during the course of andout of employment.11. As far as the liability of the appellant is concerned thelearned counsel for the respondents has garnered support from ajudgment of the Bombay High Court, reported in 2009 ACJ 947 [HanilEra Textiles Ltd., v. Namdeo Mukund Deoghare] wherein it is statedthat the workman, a learner, is entitled to get compensation for theinjuries sustained by him when he was directed by his employer to doa particular work. The operative portion of the judgment goes thus:-"7. The fact remains that though he was alearner, the respondent was allowed to operatethe machine, due to which he sustained injuries.It is the implicit responsibility and duty of theappellant not to permit learners to independentlyoperate the machines to avoid such accidents. Itis the evidence of respondent that since anotherworkman was absent, he was directed to operatethe machine. It is the evidence on behalf ofrespondent that he was forced to operate themachine on that day. This evidence is wordagainst word. The learned Commissioner and Judgehave accepted the evidence of the respondent.This acceptance stands to reason. The respondentcannot be in a position to dominate. He would beenjoyed to accept the dictates of his master.Even if the respondent desired to operate themachine, which he was not entitled, there is animplicit responsibility upon the appellant not toallow him to operate the machine. The appellantwould be guilty of the tort of negligence inallowing persons, who are not their workmen, to https://hcservices.ecourts.gov.in/hcservices/ work on their machines and cannot avoid theliability arising directly from the accidentscaused thereby. Hence the, respondent would beentitled to be compensated for his injury if hewas only a learner, but allowed to operate themachine which only a workman could operate asmuch as if he was a workman himself. Appellantcannot avoid its statutory liability by allowingthe respondent to handle the machine which causedthe injury."12. In view of the above said circumstances, this Court is ofthe considered view that even though the deceased was a trainee, asper law employee and employer relationship was existing between himand the appellant and hence, the appellant is liable to paycompensation to his dependents viz., the claimants. The substantialquestions of law formulated by this Court have been answered asindicated above. This Court does not find any factual nor legalinfirmity in the award passed by the authority below which hasproperly appreciated the evidence and made calculation to arrive atthe quantum of compensation. There is no valid ground to interferewith the order challenged before this Court which deserves to beconfirmed and it is confirmed.13. In fine, the Civil Miscellaneous Appeal is dismissed. Nocosts.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarggsTo1.The Commissioner for Workmen's Compensation, Salem. 2.The Section Officer,VR Section, High Court,Madras.+1cc to Mr.M.Ravibharathi, Advocate Sr 30812+1cc to Mr.S.Ezhilen,Advocate Sr 30898PUR(CO)km/24.10. C.M.A.No.2930 of 2004