Sachidanandam v. Govindaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.04.2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.3347 of 2003andC.M.P.No.21554 of 2003Sachidanandam...Appellant/Respondent No.2Vs.1. Govindaraj..Respondent/Petitioner2. Mohanambal ...Respondens /Respondent-1This civil miscellaneous appeal has been filed under Section 30of the Workmen's Compensation Act, 1923 to set aside the decree andjudgment of the Court of Commissioner for Workmen's Compensation(Deputy Commissioner of Labour-I), Chennai passed in W.C.CaseNo.195/2000 dated 09.06.2003.For Appellant: Mr.S.ManoharFor Respondents: Mr.Karthik (R1) for M/s.T.S.Gopalan & Co. Mr.Jayasankar (R2) J U D G M E N TThe first respondent filed an application for compensation underSection 10(1) of the Workmen's Compensation Act. (hereinafterreferred to as 'Act'). The allegations contained in the claimpetition are as follows:2. The applicant is a workman employed by the opposite party(appellant herein) for constructing shed for water pumpset forirrigation to lands and for proper maintenance of pumping equipmentsused for lifting the water from well. On 07.02.2000, at about 2.30p.m when the applicant was in the construction of the pumpset,opposite party No.1 came and requested opposite party No.2 to lookinto her oil pumpset nearby as the running pump-set engine which wasrunning, could not be stopped. Hence the opposite party No.2directed the applicant to go and look into the same. The applicant,in obedience to the direction of the opposite party No.2 and for thebenefit of the opposite party No.1 proceeded towards oil pump-setnearby in the field of opposite party No.1. Even as the applicantwas nearing, the oil pump-set burst and hit on his right knee whichchipped off the right knee cap resulting in bleeding injuries. The https://hcservices.ecourts.gov.in/hcservices/ opposite parties and others present, admitted him to C.M.C. Hospital.The monthly wages of the applicant is Rs.3,000/-. Hence a sum ofRs.2,36,472/- has been claimed as compensation from the secondopposite party.3. In the counter filed by the second opposite party (appellantherein), the following are stated:-The claim petition is not sustainable. It is incorrect to statethat on 07.02.2000 at about 2.30 p.m when the applicant was engagedin the construction of the pum-set, the opposite party No.1 requestedthis opposite party to look into her oil pump-set nearby which wasrunning and could not be stopped, that this opposite party directedthe applicant to go and look into the same and in obedience to thedirection, he went to the pump-set and on the way he met with theaccident, are all false. This opposite party, no doubt employed theapplicant for constructing the pump-set near his well since02.02.2000. On the forenoon on 07.02.2000, the applicant was doingconstruction work. At 1.30 p.m he stopped the work for lunch andduring lunch recess, in the absence of this opposite party, theapplicant on the request of the first opposite party went to stop thediesel engine which was running in an erratic manner since the beltgot disconnected. The applicant had ventured to help the firstopposite party without the consent/knowledge of this opposite party.The accident did not arise out of and in the course of employment.The applicant was neither directed nor authorised by this oppositeparty to stop the pump-set engine. The accident has got nothing todo with the applicant's employment under this opposite party. Theapplicant was purely engaged for construction work and he voluntarilyinvited the accident out of his own accord. Since the accident wasnot in the course of employment or incidental to his employment, thisopposite party is not liable to pay compensation. Two days later FIRwas lodged, twisting the facts and suppressing the truth. Thepetitioner has not sustained any permanent disability. He isperfectly normal and attending to masonry work as usual. Thepetition is malafide, motivated and devoid of merits and hence thepetition has to be dismissed.4. The authority below, after scrutinising the evidence onrecord, both oral and documentary, reached a conclusion that thefirst respondent was the employee of this appellant and he sustainedinjury in an accident during the course of and out of employment andhence he is entitled for compensation to the tune of Rs.94,589/-under the following formula:-Age:36 YearsFactor:197.06Monthly Income:Rs.2,000/- (consolidated)Loss of earning capacity:40%Compensation :60 x 2000 x 197.06 x 40 100 100: Rs.94,589/- https://hcservices.ecourts.gov.in/hcservices/

5. The above said award passed by the Commissioner of Workmen'sCompensation is under challenge before this Court in this appeal.6. The following substantial question of law was framed at thetime of admission of the appeal. "Is not the order of the Commissioner vitiated byexercise of jurisdiction not vested in him under thestatue while assessing the loss of earning power on hisown and by failure to exercise such jurisdiction when hefailed to make provision for indemnify under Section 12and 13 of the Act?"7. The learned counsel for the appellant Mr.S.Manohar wouldstrenuously contend that inasmuch as the facts and evidence on recordare otherwise, the authority below has wrongly concluded that thefirst respondent is an employee under the appellant and hence he isentitled for compensation, that the first respondent would not comewithin the purview of "workman" as defined in the Workmen'sCompensation Act and that the authority below has miserably failed toappreciate the evidence on record in a proper perspective.8. Arguing on the other side of the coin, the learned counselfor the first respondent/claimant would submit that the factualfindings of the Commissioner, based on the materials available onrecord are more appropriate and the appellate court cannot go deepinto the oral testimonies on record, that even if the firstrespondent is termed to be a 'casual labourer', still he should bemade entitled to get compensation under the Workmen's CompensationAct since he fulfills the statutory requirements and that the workundertaken by him at the time of accident was incidental to the workof his employer, namely the appellant and hence there is no need todisturb the findings of the authority below.9. In order to have a thorough glimpse of the matter in issue,it is more advantageous to have re-appraisal of the evidence onrecord before the authority below to some extent, without which therecould be no just decision.10. The second respondent herein, though, remained expartebefore the authority below, posed as RW-1 and deposed in the cross-examination that she did not call the claimant, that he did not layhis hand on pump-set and that she was monitoring the pump-set. She,in her chief examination had deposed that she did not ask theclaimant to go to her land and that he did not even go near her land.In the cross-examination, this appellant has stated that Mohanambalasked the claimant to stop the pump-set.11. Ex.A7, is a xerox copy of a letter reportedly written bythis appellant addressed to one Dakshinamoorthy, a trustee ofAbdullapuram temple, in which it is stated that on humanitariangrounds, at the request of Mohanambal made to the claimant, he(appellant) permitted him to go to stop the engine. This xerox copywas marked through PW-1, the claimant and in his cross-examination it https://hcservices.ecourts.gov.in/hcservices/ is denied on the side of this appellant that he has not written anysuch letter and no panchayat was held in this regard. Ex.A7 is axerox copy and there is no impediment for the claimant to examine thesaid Dakshinamoorthy before the authority below to prove Ex.A7.Since the existence of document itself is denied by this appellant,it is incumbent upon the first respondent to prove it, but as it wasnot done, Ex.A7 remains unproved.12. For better understanding of the matter involved in thisproceedings, it is profitable to have extraction of Section 2(1)(n)of the Act which reads as follows:-" 'workman' means any person (other than a personwhose employment is of a casual nature and who is employedotherwise than for the purposes of the employer's trade orbusiness) who is- (i) a railway servant as defined in Section 2(34) ofthe Indian Railways Act, 1989 (24 of 1989), not permanentlyemployed in any administrative, district or sub-divisionaloffice or a railway and not employed in any such capacityas is specified in Schedule II, or(i-a)(a) a master, seaman or other member of the crewof a ship,(b) a captain or other member of the crew of anaircraft,(c) a person recruited as driver, helper, mechanic,cleaner or in any other capacity in connection with a motorvehicle,(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity asis specified in Schedule II and the ship, aircraft or motorvehicle, or company, as the case may be, is registered inIndia, or;(ii) employed in any such capacity as is specified inSchedule II,Whether the contract of employment was made before or afterthe passing of this Act and whether such contract isexpressed or implied, oral or in writing; but does notinclude any person working in the capacity of a member ofthe Armed Forces of the Union; and any reference to aworkman who has been injured shall, where the workman isdead includes a reference to his dependents or any ofthem."13. The learned counsel for the appellant would argue that thefirst respondent was only a casual labourer and he could not availthe benefits proposed under the Act. On the strength of earlierauthorities of the Supreme Court, in 2001 ACJ 1561 - LakshminarayanaShetty V. Shantha and another, the Supreme Court while dealt with a https://hcservices.ecourts.gov.in/hcservices/ matter in which a labourer when working under a contract of work ofpainting the house died. The High Court entertained the claimpetition under Workmen's Compensation Act. But the Supreme Court isof the view that such a person could not come under the category ofan 'employee' as defined under the Act and hence no compensation isavailable to the heirs of such labourer. The judgment of the SupremeCourt runs as follows:" 3. The respondents are the daughters and wife of thedeceased Ramu who was engaged by the appellant to paint thehouse. While he was doing this work, he unfortunately felldown and died. The claim for compensation under theWorkmen's Compensation Act was denied, but on a writpetition being filed the High Court has allowed the sameclaim.4. No reasons have been given by the High Court forcoming to the conclusion that this was a case which fellwithin the domain of the Workmen's Compensation Act. Therewas apparently a contract between the appellant and Ramuwhereby Ramu had undertaken the work of painting the house.Whether the action of the appellant by engaging a person inthis manner makes him employee or a workman of theappellant was a question to be decided. The case did notfall within the four corners of the said Act and,therefore, the decision of the High Court was incorrect.We, therefore, allow the appeal and set aside the decisionof the High Court."14. In 2006 ACJ 521 – Central Mine Planning & Design InstituteLtd. v. Ramu Pasi & another, the Apex Court while specificallydetermining the proposition as to the rights of a casual worker, hasheld that when he was not employed for the purpose of employer'strade or business, if he sustains injury during the course of hisemployment he could not be treated to be a 'workman' within thedefinition of Section 2(1)(n) of the Act and the claim was notmaintainable before the Commissioner. Their Lordships have expresseda view that "a bare reading of the Act shows that the expression'workman' as defined in the Act does not cover a casual worker andthat there was also no definite material adduced to show that theclaimant was employed for the employer's trade or business." In thesaid case, the employee suffered injury on his left ring finger whenhe was working in the factory of the appellant. The Labour Courtallowed the claim by stating that he was a casual worker. On appeal,the High Court confirmed the said award and the matter was carriedbefore the Supreme Court, in which the above said opinion wasrendered.15. In order to bring an individual to the terms 'casual worker'it must be shown that he was not employed for a work to be done whichwas incidental or connected to the trade or business of the employer.If the work assigned to him and undertaken by him is found to havebeen any nexus or incidental to the trade or business of theemployer, then, eventhough he is a casual labourer, then he could be https://hcservices.ecourts.gov.in/hcservices/ termed to be a 'workman' as defined in the Act. 16. The learned counsel for the appellant also placed muchreliance upon a decision of the Supreme Court reported in 2008(2) CCC297(SC) – Om Prakash Batish versus Ranjit @ Ranbir Kaur and others,in which the Apex Court has held that the workman was employed for alimited period for carrying our repair work in a residential house,could not come within the description of a workman as contained inthe provisions of the Act.17. The learned counsel for the first respondent would garnersupport from a Division Bench judgment of the Kerala High Court inwhich the learned judges have expressed their opinion that a personto be excluded from the definition of 'workman' as defined in theclause must not only be one "whose employment is of a casual nature"but also one who is employed otherwise than for the purpose of theemployer's trade or business and that both these qualifications mustbe satisfied in order to exclude a person from the category ofworkman under the Act."18. As per this court, as reported in 1988 II LLN 521 — betweenSri Padmanabha Theatre and Commissioner for Workmen's Compensationand others, a person though employed to clean the roof, may beoccasional, it cannot be said that it was otherwise than for thepurpose of employer's trade or business and under such circumstances,it cannot be taken out of the definition of 'workman' under the Actand it is to be held that he was employed for the purpose ofemployer's trade or business and he sustained injuries during theaccident that occurred during and in the course of the employment."19. The learned counsel for the e appellant placed reliance upona Division Bench of this court reported in 2003-4-L.W.522 — TheDean, Agricultural College and Research Institute, Kilikulam,Vallanad 627 252 Vs. 1. Tmt.S.Sakilabanu, 2. Thiru.S.Mani Contractor;3. The Executive Engineer, PWD (Private Housing Division), Tuticorin-2, 4.V.Sudalaimuthu – had occasion to have a discussion withreference to the definitions of employer and workman under the Act,held that the Principal employer of the workman has to be held liablewhen the work was entrusted to a contractor by the PWD which was forthe building required for Agricultural College who in turn entrustedthe work of constructing with the Public Works Department. Theoperative portion of the judgment goes thus:-" In this case also, the construction put up by theDean is not for his business and it is only an educationalinstitution. However, construction has been entrusted to abuilding contractor through PWD and therefore it is the PWDContractor, who is the principal employer under whom theworkman was engaged and therefore it is the contractor, itat all, who is liable as the principal employer, and thesub-contractor under the immediate employer may also beproceeded. Considering the pronouncement of the Supremecourt to proceed against the Dean of the College it has tobe pointed out that the Dean may not fall within the four https://hcservices.ecourts.gov.in/hcservices/ corners of the Workmen's Compensation Act and to bring itwithin the four corners the workman has to proceed onlyagainst the principal employer, namely, the PWD Contractorand the immediate employer, the fourth respondent herein asthe case may be. The view taken by the Commissioner forWorkmen's Compensation holding that the Dean is thePrincipal employer and against him a claim under the Act ismaintainable cannot be sustained at all and it has totherefore be set aside.20.(i) Repelling the contention of the appellant, the firstrespondent's learned counsel distinguished the above said decision,as to the facts and circumstances and relied upon a subsequentDivision Bench decision of this court which has distinguished theabove said decision bearing in mind the facts available in both casesi.e. in 2004 (3) CTC 770 – K.Kamalaveni and another Vs. The ManagingDirector, Subbathal Spinning Mills (P) Limited, 128 Bhavani MainRoad, Ashokapuram, Erode and another, the facts of the case are thatthe deceased was a labourer under a contractor but entered into acontract with the first respondent, a spinning mill for constructionof a roof of the godown in the mills and the deceased was working forthe purpose of construction in the roof of the godown, on 19.01.1993,he fell and sustained injuries who later on died. The Commissionerfound that he was not a workman and that he did not sustain injuriesin the accident which arose out of and in the course of hisemployment, rejecting the claim. On appeal, the Division Bench ofthis court found the deceased as 'workman' as described under the Actand allowed the appeal. 20.(ii) In Kamalaveni's case, this court has held that the firstrespondent managmement Mills on whose instruction the godown wasconstructed for the purpose of their business have to be construed asPrincipal employer though the deceased was immediately employed bythe second respondent contractor and hence the mills are liable topay compensation to the claimants according to Section 12 of the Act.The Division Bench has distinguished the facts in Sakila Banu's caseby stating that since the deceased worked under a Sub-contractor whotook up the work from the contractor with whom the AgriculturalCollege entrusted the construction of ladies hostel. In that case itwas held that the Dean of the college was not liable to paycompensation, but PWD contractor who is the Principal employer isliable, who in turn could get it reimbursed from his immediateemployer.21. Adverting to the facts of the present case, the workassigned to the first respondent was to construct shed for water pumpset for irrigation to lands and for proper maintenance of pumpingequipment used for lifting water from well. Excepting the ipse dixitof the first respondent, there is no material to show that he wasdeputed by this appellant to go to the field of the secondrespondent herein and to look into the pump set in her well. Ofcourse, the Court could not accept any evidence other than theparties to the proceedings in the site of occurrence. The secondrespondent has stated unequivocal terms that she did not make any https://hcservices.ecourts.gov.in/hcservices/ request to the claimant to come to her land and that he did not evengo near her land. But the appellant in his cross examination wouldsay that at the request of the second respondent, the firstrespondent had gone to her pump set. When the oral evidence onrecord are carefully dissected, it transpires that the appellant didnot direct the first respondent to go to second respondent's land todo anything. But the first respondent was prompted to go to her landby the request of the second respondent and hence he proceeded. Inthis context, this Court sees no role on the part of the appellantand it is difficult to hold that he directed or deputed the firstrespondent to go to the second respondent's land.22. It is further observed that if the first respondent hassustained employment injury while he undertakes any work connectedeither directly or incidentally to the business of the appellantalone, he could be brought under the ambit of "workman". This Courtis at loss to find out that the first respondent went as per thedesire and direction of the appellant. In this regard, even if thefirst respondent is a workman or a casual labourer under appellant,he could not be held entitled to compensation from the appellant forthe reason that he did not do any act which was incidental orconnected to the employment, which was assigned by the appellant.Hence the first respondent is not entitled for the relief.23. In view of the above said observations, in the light of thesettled position of law, the order impugned, challenged before thisCourt, has to be set aside and it is accordingly set aside.24. In fine the Civil Miscellaneous Appeal is allowed. No costs.Connected M.P. is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarasr/ggsToThe Commissioner for Workmen's Compensation(Deputy Commissioner of Labour-I), Chennai.+1cc to Mr.T.S.Gopalan & Co., Advocate Sr 17596+1cc to Mr.S.Jaya Sankar, Advocate Sr 18148PUR(CO)km/4.6.C.M.A.No.3347 of 2003