Full Judgment
2. The applicants, who are the wife, minor son and parents of the (deceased) K.Selvaraj, have filed the claim in W.C.No.248 of 2007, claiming compensation of a sum of Rs.2,82,809.40/- from the opposite party for the death of the said Selvaraj in an accident arising out of and in the course of doing his duty under the employment of the opposite party. It was submitted that the (deceased) Selvaraj was employed in TASMAC, which was in the control of the opposite party and that he was working as a Salesman in Shop No.3153, situated at old convent Road, Kodaikanal from 13.12.2003 and earning a sum of Rs.2,000/- per month. On 02.02.2007, when he was doing his duty as a Salesman in the said shop, he was ordered by the opposite party to stay in the shop in the night as the liquor bottles being supplied to the shop would be delivered late night and that he should carry out the unloading of such liquor bottles after it was delivered. As instructed, the (deceased) Selvaraj had slept in the shop on that day and that due to a sudden fire engulfing the shop at night hours, he had been burnt and died in the accident. At the time of accident, the (deceased) was aged 24 years and was earning a sum of Rs.2,000/- per month which was much below the minimum wages of Rs.2,589/- fixed by the Government for this class of employees. Hence, the applicants have filed the claim against the opposite party.
3. The opposite party has admitted that the said Selvaraj was employed in Shop No.3153 situated at old Convent Road, Kodaikanal and that he had died in the fire accident which occurred in the shop in early morning hours on 02.02.2007. It was submitted that a family relief of Rs.1,00,000/- had been paid by them to the wife of the deceased on 16.04.2007 and that a compensation of Rs.65,000/- and Rs.15,000/- paid by the Insurance Company directly to the wife of the deceased, on their recommendation, on 04.05.2007. It was also submitted that he employee provident fund benefits due to the (deceased) had also been paid by the E.P.F Office based on their recommendations dated 04.04.2007 and that the family pension benefits had been paid by the E.P.F Office regularly to the applicants right from the time of of the death of the deceased on 03.02.2007. It was submitted that as the (deceased) Selvaraj was hired on a purely part time/temporary and on contract basis and that even as per the appointment order issued to the (deceased) Selvaraj, he was not eligible to get any compensation as per the Workmen's Compensation Act and rules. It was submitted that the said firm was a Corporation Unit has to abide by the instructions laid down by the State Government and that the (deceased) Selvaraj was appointed as salesman on 13.12.2003, as per the act and rules enacted by the Government in its proceeding No.1800/A/2003 and that he was paid Rs.2,400/- per month. It was also submitted that the Salesman appointed in these shops are not entitled to get any promotion and that they cannot be made permanent employees and that they cannot claim any rights and that this had been made clear in the terms and rules contained in their order of appointment. It was also submitted that on 02.02.2007, after the (deceased) Selvaraj had completed his work, he had stayed in the shop, unauthorisedly and that the accident had not occurred during the period which the (deceased) was doing his duty but had occurred only because the negligence of the (deceased) Selvaraj who had not closed the shop after doing his work and that as he had closed the shop inside, he was not able to get out when the fire engulfed the shop. It was submitted that as the (deceased) Selvaraj was not employed as a "worker" as per the Workmen's Compensation Act and rules and he had been employed by the State Government, as per the act and rules framed by Government for sales of liquor, or his legal representatives cannot claim any compensation as per the Workmen's Compensation Act.
4. On the applicant's side, the 1st applicant Tmt.Murugalakshmi, was examined as PW.1 and ten documents were marked as Exs.P1 to P10 namely: Ex.P1- copy of appointment order; Ex.P2-transfer certificate; Ex.P3-death certificate; Ex.P4-F.I.R; Ex.P5-legal heir certificate; Ex.P6-post mortem report; Ex.P7-copy of family ration card; Ex.P8-letter sent to opposite party; Ex.P9-acknowledgment card; Ex.P10-copy of G.O.No.2(D)5, dated 22.02.2005. On the opposite party's side, one Balakrishnan was examined as RW.1 and one Ravichandran, Salesman was examined as RW.2 and six documents were marked as Exs.R1 to R6 namely: Ex.R1-copy of rules and regulations framed for employee; Ex.R2-order copy to pay family relief fund and acknowledgment card showing receipt of order by the 1st applicant; Ex.R3- recommendation made by opposite party to Insurance Company to pay the Joint Insurance Policy amount to applicants; Ex.R4-documentary showing insurance policy taken in the name of Selvaraj; Ex.R5-copy of statement of account of (deceased) Selvaraj showing future provident fund to be paid to him; Ex.R6-copy of certificate showing family pension fund payable to the applicants.
5. The Commissioner for Workmen compensation framed five issues for consideration in the case namely: (1) Did the (deceased) employed as a "workman" under the opposite party?; (2) If so, did the (deceased) die in the accident caused while doing his duty under the course of employment with the opposite party?; (3) What is the age and income of the (deceased); (4) What is the quantum of compensation which the applicants are entitled to get?; (5)Who is liable to pay compensation to the applicants? 6. PW.1, Tmt.Murugalakshmi, the wife of the (deceased) Selvaraj had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident.
7. The Commissioner for Workmen's compensation on observing that the (deceased) had worked as a Salesman in the TASMAC shop of the opposite party and that he had not worked as a part time employee but put in more than eight hours work everyday held that the (deceased) was a "workman" as per the Workmen's Compensation Act.
8. RW.1, Balakrishnan, the Assistant Administrative Officer of the opposite party had adduced evidence that on 02.02.2007, the (deceased) Selvaraj had completed his work at 10.00 p.m., and that he had stayed unauthorisedly in the said shop during the night, without taking the permission of the Superior Officers and that instead of locking the shop from outside, he had put the latch inside and that it was due to his negligence and illegal stay that he had not been able to come out when the fire engulfed the shop and had consequently died in the mishap. He deposed that he had not died in an accident arising out of and while carrying his work, the opposite party is not liable to pay any compensation. He deposed that all the benefits due to the (deceased) family had been given by them as per the acts and rules of their firm and that the applicants, after having received all the benefits from them, could not initiate a claim case against them under the Workmen's Compensation Act.
9. PW.1, had in her evidence adduced that her husband had stayed in the shop only based on the order issued by the opposite party and that he had done so only to facilitate unloading of liquor cartons in the night. RW.1, during his cross examination had stated that on the date of accident i.e., 02.02.2007, he had come to know through the documents maintained in the firm that a lorry had been in the process of unloading liquor cartons to all the TASMAC shops at Kodaikanal on that night. Hence, the Commissioner on opining that the (deceased) Selvaraj had stayed in the shop only to unload the liquor cartons and had not illegally or unauthorisedly stayed in the shop, as per the contention of the opposite party held that the (deceased) had stayed in the shop on 02.02.2007, only on the orders of the opposite party and he had died in the accident during the course of doing his duty under the employment of the opposite party.
10. On scrutiny of Ex.P2, school transfer certificate, it is seen that the date of birth of the (deceased) was 01.04.1982. Hence, the Tribunal observed that the (deceased) was aged 24 years at the time of accident. The Commissioner, an observing that the opposite party's firm comes under the purview of the shops and establishment act, held that the minimum wages fixed by the Tamil Nadu Government as per the minimum wages act passed in G.O.No(2D) No.5(J1), labour and employment dated 22.02.2005 has to be paid to the (deceased) Selvaraj and hence held the (deceased) Selvaraj was drawing monthly wages of a sum of Rs.2,589/- at the time of accident. On adopting a multiplier of 218.47, the Commissioner awarded a sum of Rs.2,82,809/- as compensation to the applicants under the head of loss of income; Rs.2,500/- was awarded towards funeral expenses. In total, the Commissioner of Workmen's compensation awarded a sum of Rs.2,85,309/- as compensation to the applicants and directed the opposite party to deposit the said sum within 30 days from the date of its order failing which they had to pay the said sum together with interest at the rate of 12% per annum from the date of accident till date of deposit.
11. Aggrieved by the award passed by the Commissioner of Workmen's Compensation, the opposite party/District Manager, TASMAC, Dindigul, has preferred the present appeal. It was contended by the learned counsel for the appellant that as the (deceased) had worked as a salesman on a temporary and contract basis under the appellant, he cannot be considered as a workman as per section 2(1) (a) of Workmen Compensation Act as such there was no employer- employee relationship between the appellant and the deceased. It was contended that as the deceased, after furnishing his work in the appellant's shop had gone out and then later on come back to the shop, for his convenience and stayed at the night, without obtaining proper permission, it was evidence that he had not died during the course of employment, as the accident had happened after the working hours. It was contended that as the deceased was working only on a consolidated pay basis and as he was not covered under the Workmen Compensation Act as he was hired on a purely part time/temporary and contract basis, the applicants could not claim any relief as per the Workmen's Compensation Act, as the relief due to the applicants had already been paid from the office of the appellant. It was contended that on the date of accident, as per the records, no goods were supposed to be delivered to the appellant's shop and hence the deceased, without getting proper permission the authorities and against the TASMAC employment rules stayed at the night time. It was contended that the Commissioner erred in fixing the wages of deceased as Rs.2,589/- per month failing to note that as per the minimum wages notification, the salesman is entitled to get only the amount on the basis of the contract. It was also contented that the Co-worker (Supervisor) of the deceased was not examined by the claimants and hence the entire recording of evidence is baseless and perverse and has to be set aside. Hence, it was prayed to set aside the order passed by the Commissioner for Workmen's Compensation.
12. The learned counsel for the respondent submits that it was an admitted fact that the deceased was appointed on 13.12.2003 by the appellant herein. The salary has been fixed at Rs.2,000/- by the appellant and he was employed at Shop No.3153, Convent Road, Kodaikanal. Therefore, employer-employee relationship was confirmed. The highly competent counsel submits that the deceased was Salesman for the said shop and he is also responsible to receive the liquor cartons which was scheduled to be delivered to the said shop on the fateful day. So, he had stayed back at the shop after putting interlock in the shop. Due to unavoidable circumstances and without any indication a fire had suddenly broken out and engulfed the shop and as such the deceased was not able to escape. The accident had happened during the course of employment. The learned counsel further submits that on the basis of the income of the deceased and age of the deceased, the compensation amount has been assessed by the Deputy Commissioner of Labour.
13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the learned Deputy Commissioner of Labour, this Court does not find any lapse in the findings of the Deputy Commissioner of Labour regarding employer- employee relationship and that the accident had occurred during the course of employment of the deceased under the appellant herein. This Court is of the further view that it is an admitted fact that the appellant appointed him as salesman in the said shop on 13.12.2003. Further, he was in charge of the said shop for receiving the liquor cartons scheduled to be delivered on that day. Further, it is seen from the evidence from RW.1 that he had admitted that a lorry carrying liquor cartons was in the process of unloading liquor cartons at all the TASMAC shops in Kodaikanal area on that day. It is also seen that the said lorry had come to shop No.3153 on the early morning horns for unloading the liquor cartons. As such, it is seen that the deceased was the only person to receive such liquor bottles. Therefore, it is evident that the deceased had stayed in the shop only to do his work of unloading the liquor cartons as and when the lorry arrives. Therefore, this Court declines to interfere with the impugned order of the learned Deputy Commissioner of Labour. As per Court records, it is seen that the entire compensation amount had been remitted by the appellant herein.
14. Now, it is open to the claimants 1,3 and 4 to withdraw their apportioned share amount, with accrued interest thereon if any, lying in the credit of W.C.No.248 of 2007, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Dindigul, after filing a memo, along with a copy of this order and after identification made by the applicants counsel. This Curt further directs the learned Deputy Commissioner of Labour to deposit the 2nd claimants apportioned share amount in a nationalized bank, as fixed deposit in the cumulative deposit scheme, till he attains the age of major and hand over the fixed deposit certificates to the 1st applicant, i.e., the mother of the minor son Yuvaraja.
15. In the result, the above appeal is dismissed. Consequently, the judgment and decree passed in W.C.No.248 of 2007, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Dindigul, dated 30.11.2011, is confirmed. Consequently, connected miscellaneous petition is closed. No costs. ub To 1.The Deputy Commissioner of Labour for Workmen's Compensation, Dindigul. 2.The Section Officer, VR Section, High Court, Madras.