Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
04. /11 /2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.849 of 2006 & C.M.P.No.3317 of 2006 The Management, Avinashilingam Engineering College, Somaiyampalayam (Post), Pannimadi (Via), Coimbatore-641 108. ... Appellant Vs. 1.A.Duraisamy 2.The Management, PM & Company (Engineers & Builders), 138 D, Thiruvekgadasamy Road, R.S.Puram, Coimbatore - 641 002. 3.Mr.Rathnam ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of the Workmen's Compensation Act, to call for the records of the Commissioner for Workmen's Compensation cum Deputy Commissioner of Labour, Coimbatore in W.C.No.31 of 2004, dated 02.03.2005 and set-aside the same. For Appellant : Mr.N.Mumapathy For Respondents : Mr.R.M.D.Nasirullah & Mr.K.V.Shanmuganathan for R-1 R- 2 and R-3 (dismissed) - - -
JUDGMENT
The appellant / first respondent has preferred the present appeal against the order passed in W.C.No.31 of 2004, on the file of Workmen's Compensation cum Deputy Commissioner of Labour, Coimbatore.
2. The short facts of the case are as follows:- The applicant has filed the claim in W.C.No.31 of 2004, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the injuries sustained by him in an accident arising out of and while doing his duty in the course of employment under the respondents. It was submitted that the petitioner was engaged by the third respondent, labour contractor to assist in the construction of the building, owned by the first respondent, which was supervised by the second respondent. While so, on 27.11.1997, while the applicant was doing his work, he fell down from the scaffolding which was erected at a hight of 25 feet. As a result, he sustained fracture of bone in his right leg and was admitted at KRS Hospital, Perianaickkanpalayam and subsequently on 01.12.1997, he was admitted at J.M.A.Hospital, at Sathyamangalam. Later on, he was admitted at Coimbatore Government Hospital. At the time of accident, the applicant was aged 60 years and was being paid a daily wage of Rs.140/-. Due to the accident, the applicant had sustained a disability of 30%. Hence, the applicant has filed the claim against the first, second and third respondents.
3. The first respondent, in his counter has submitted that there was no employer-employee relationship between the first respondent and the applicant and that the applicant had never worked under the employment of the first respondent. The averments in the claim regarding manner of accident was also not admitted. It was submitted that the first respondent had entered into an agreement with the second respondent to construct the building in the college premises on 05.03.1997 and as per the agreement, the second respondent was responsible for taking care of building materials, labour and other duties regarding construction of building and that all the workers were under the employment of the second respondent. It was submitted that as per the agreement, only the second respondent is liable to take care of the workers, who are injured in an accident while doing their work on the construction site. It was submitted that as the applicant had claimed in his petition that he was employed by the second respondent, the first respondent cannot be held liable to pay any compensation. The averments in the claim regarding age and income and disability sustained by the applicant was also not admitted.
4. On the applicant's side, three witnesses were examined and three documents were marked as Exs.P1 to P3, viz,. Ex.P1-letter dated 01.12.1997 issued by DMA Hospital, Ex.P2-disability certificate and Ex.P3-X-ray. On the respondent's side, one witness was examined and three documents were marked as Exs.R1 to R3, viz., Ex.R1-acceptance letter, Ex.R2-contract agreement and Ex.R3-statement of receipt dated 13.12.1997.
5. The Deputy Commissioner of Labour had framed two issues for consideration in the case, viz., ".(i) Is the applicant a 'workman' as per the Workmen's Compensation Act?. Did he sustain injuries in an accident arising out of and while doing his work under the employment of the respondent?. (ii) What is the quantum of compensation which the applicant is entitled to get?. Who is liable to pay compensation?.".
6. P.W.1 had adduced evidence that he was engaged to work as a mason in the Avinashilingam College and that he was taken to the second respondent's company, viz., P.M.Company by the second respondent, who was the building contractor. He deposed that on 27.11.1997, while he was on top of the scaffolding erected near the first floor of the building, the rope had snapped resulting in his fall. He deposed that he had sustained fracture of his right ankle and was admitted at K.R.Hosital, Periyanaickkanpalayam and as he was not given treatment there, he was admitted at Dr.Amarullah Hospital, Sathyamangalam, wherein he received treatment for 10 days, as an inpatient. He deposed that as his injury was not set right, he took further treatment at Tirupur Hospital. He deposed that the accident had occurred at Avinashilingam College Campus and that the second respondent had paid his salary.
7. P.W.2, Sakthivel, the eyewitness had adduced evidence that he was also employed in construction work and employed by the third respondent. He deposed that he is acquainted with the applicant and that he had sustained a fall from the scaffolding erected on the first floor, while he was doing the work as a mason. He deposed that he and the third respondent had taken the applicant to K.R.S.Hospital. During his cross examination, he had stated that he was paid his salary by the third respondent and that the applicant had fallen from a height of 20 feet.
8. R.W.1, M.Ganesan, Civil Engineer had adduced evidence that he was employed by the first respondent's firm and that from the year 1991 onwards, he has been working as a civil engineer in Avinashilingam University. He deposed that a college, owned by the Avinashilingam University is being run near Varapalayam and that a hostel had been built in this college in the year 1997. He deposed that the tender advertisement was given for construction of this hostel and that the second respondent, viz., P.M.Company had been selected for building the construction and contract was awarded to him and that a contract agreement was in force between them as per Ex.R2. He deposed that safety measures for workers had been listed in Clause 22 of the agreement and as per the Clause, the second respondent was totally responsible to take welfare measures for the workers employed by him. He deposed that the first respondent had not engaged any workers to do the construction work and that there was no employer-employee relationship between the first respondent and the workers engaged in construction work. He deposed that the applicant was not employed by the first respondent and that the second respondent had also not intimated them about the accident that took place on 27.11.1997. He deposed that no police investigation had been done in the said accident and no F.I.R. has been filed. He deposed that they had settled the dues payable to P.M. & Company and that after getting the notice form Court, they had approached the second respondent, but the said company was not in the earlier place.
9. The Deputy Commissioner of Labour, on observing that the first respondent had not denied about the construction going in their college and on observing that they had given the building contract to the second respondent and on observing that the second respondent had not entered appearance to deny the employment of applicant, held the applicant had sustained injuries in an accident arising out of and while doing his construction work in building in the course of employment on 27.11.1997. The Deputy Commissioner, on scrutiny of Ex.R2, observed that the second respondent has to take care of the welfare and safety measures of the workers employed for construction work. The Deputy Commissioner of Labour observed from the contract that the second respondent was the contractor of the first respondent's firm and that the first respondent was the principal employer.
10. As no documentary evidence had been marked to prove the income of the applicant, the Deputy Commissioner of Labour held that the notional income of the applicant could only be taken as Rs.2,324/- per month as per the Minimum Wages Act enacted by the Government as per G.O.No.(2D)No.34, Labour & Employment Department dated 12.07.1996. However, the Deputy Commissioner of Labour held that for purpose of calculation of compensation, the applicant's income could only be taken as Rs.2,000/-.
11. P.W.3, Dr.G.Gnanadurai had adduced evidence that he had examined the applicant and scrutinized his medical records and observed that the applicant had sustained an injury un his right ankle in May 1997 and that as complications had set in while treatment and that his right ankle had degenerated and certified that the applicant had sustained 35% disability. However, the Deputy Commissioner, on observing that no documents had been marked by the applicant to show the nature of injuries sustained and medical treatment taken, held that the disability sustained by the applicant could only be taken as 10%. The Deputy Commissioner, on observing from scrutiny of Ex.P2 that the applicant was aged 25 years at the time of accident, adopted a multiplier of 121.05 and awarded a sum of Rs.14,526/- as compensation to the applicant under the head of 'loss of income' (60/100 x 2000 x 121.05 x 10/100); and directed the first respondent to deposit the said sum within 20 days from the date of its order, failing which, the first respondent was directed to deposit the said sum together with interest at the rate of 12% per annum from the date of accident till date of payment of compensation.
12. Aggrieved by the award passed by the Commissioner of Workmen's Compensation, the first respondent / The Management, Avinashilingam Engineering College, Coimbatore has preferred the present appeal.
13. The learned counsel for the appellant has contended in his appeal that the Commissioner for Workmen's Compensation ought to have seen that the third and fourth respondents herein who are the principal employer deliberately stayed away from the proceedings without even filing a counter knowing fully well that they are responsible for the claim made by the second respondent herein. It was contended that the first respondent failed to consider the well settled principle that when the job was not of trade or business normally carried on by the appellant, then liability cannot be thrust on the appellant since the appellant cannot be said to be a principal employer. It was contended that the appellant was not aware of the age, wage and the nature of work or the accident and sufficient materials were also not produced by the claimant / second respondent to substantiate the same. In the absence of the above, the first respondent ought not to have granted the claim and that too against the appellant. Hence, it was prayed to set-aside the award passed as against the appellant.
14. The very competent counsel for the applicant submits that there was a building construction agreement between the first and second opposite party and as such, the first opposite party is the principal employer. In order to prove the said relationship, a copy of the agreement had been marked before the trial Court. Further, there is no dispute that the applicant had fallen from the scaffolding erected near the construction site on 27.11.1997, while he was doing his work at the premises of the first opposite party. As such, the employer-employee relationship has been proved and it has also been proved that the accident had been caused during the course of employment. As per the doctor's evidence, the applicant's right leg had been fractured and he had sustained 30% disability. Considering the age, income and disability, the compensation amount had been assessed after adopting appropriate multiplier.
15. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding employer-employee relationship, liability and also the fact that the accident had occurred during the course of employment. Further, the quantum of compensation awarded is also not on the higher side. As such, this Court confirms the said impugned order.
16. As per this Court records, it is seen that the entire compensation amount had been deposited. Now, the applicant is at liberty to withdraw the entire compensation amount, with accrued interest thereon, if any, lying in the credit of W.C.No.31 of 2004, on the file of Workmen's Compensation cum Deputy Commissioner of Labour, Coimbatore, after filing a Memo, along with a copy of this order.
17. In the result, the appeal is dismissed. Consequently, the order and decree passed in W.C.No.31 of 2004, on the file of Workmen's Compensation cum Deputy Commissioner of Labour, Coimbatore dated 02.03.2005 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed. 04 / 11 / 2013 Index : Yes. Internet : Yes. r n s C.S.KARNAN, J.
r n s To The Workmen's Compensation cum Deputy Commissioner of Labour, Coimbatore. Pre Delivery Judgment made in C.M.A.No.849 of 2006 & C.M.P.No.3317 of 2006 04 /11 /2013