A.Shivaiah Vs. Fues Gear Electrical Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169754
CourtChennai High Court
Decided OnOct-29-2013
JudgeC.S.KARNAN
AppellantA.Shivaiah
RespondentFues Gear Electrical Limited
Excerpt:
in the high court of judicature at madras dated:29. 10.2013 coram the honourable mr.justice c.s.karnan c.m.a.no.2479 of 2006 a.shivaiah ... appellant vs. fues gear electrical limited velthangai village thangalam ani sriperumbuthur-602 105 ... respondent prayer: civil miscellaneous appeal is filed under section 30 of the workmen compensation act, 1925, against the order dated 24.05.2004, made in w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii / commissioner for workmen compensation-2, chennai-6. for appellant : mr.t.kumar for respondent : mr.s.t.s.murthi - - - judgment the appellant / applicant has preferred the present appeal against the order dated 24.05.2004, made in w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii/commissioner for workmen compensation-2, chennai-6.2. the short facts of the case are as follows:- the applicant had filed a claim petition in w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii / commissioner for workmen compensation-2, chennai-6, against the opposite party, claiming a compensation of rs.3,00,000/-, for the injuries sustained by him in an accident arising out of and while doing his work during the course of his employment under the opposite party.3. it was submitted that on 26.08.2002, when the applicant was working as a machine operator, in night shift, in the opposite party's firm, his index finger of his left hand was inadvertently drawn into the pressing machine, due to which he sustained injuries. he was admitted at government stanley hospital, wherein his 2nd finger was amputated. subsequently, he rejoined duty but was removed from service. it was submitted that the applicant had sustained 20% disability due to the injuries sustained in the accident. at the time of accident, the applicant was aged 22 years and was getting a salary of rs.3,000/- per month. hence, the applicant had filed the claim petition against the opposite party.4. the opposite party, in their counter affidavit, had submitted that the applicant was an engineering graduate and that he was employed as a trainee in computer aided design operations in their firm and had not worked as a machine operator as alleged in the claim. it was submitted that employment would be granted to such trainees only after a period of one year based on their skill in carrying out the designated work. further, it was submitted that the working session for a trainee in their firm was from 09.00 a.m., to 05.00 p.m., and that the trainee was paid rs.2,000/- per month as stipend and that trainees were not given any work responsibilities. it was submitted that the applicant had unauthorizedly entered into the pressing machine section of their office and invited the accident. further, it was submitted that no employer-employee relationship existed between the applicant and the opposite party and that the applicant had not sustained the said injuries while doing his duty in the course of employment under the opposite party. the averments made in the claim petition regarding income, disability and treatment were also not admitted.5. on considering the averments of both parties, the deputy commissioner of labour-ii/assistant commissioner of labour-2, chennai-6, had framed two issues namely: 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 duty in the course of employment under the first opposite party?. and ii. what is the quantum of compensation, which the applicant is entitled to get?. who is liable to pay compensation?.6. on the side of the applicant, the applicant was examined as p.w.1 and three documents were marked as exs.p1 to p3 namely discharge summary issued at government stanley hospital, medical treatment record issued at sri ramakrishna hospital and lawyer notice. on the opposite party's side, one anandakumar was examined as r.w.1 and nine documents were marked as exs.r1 to r9 namely salary particulars of the applicant for the period from june 2002 to october 2002, voucher, monthly planning for the month of august 2002, production plan dated 24.08.2002, planning for the period from 26.08.2002 to 27.08.2002, register showing insurance of job card, job card, maintenance advice particulars and training program particulars.7. p.w.1, the applicant, had adduced evidence that he was working as a machine operator in the opposite party's workshop and that on 26.08.2002 he was working in the night shift duty i.e., from 05.30 p.m., to 02.00 a.m. he deposed that at about 09.00 p.m., when he was operating the pressing machine, his second finger of left hand was crushed due to malfunction of machine and that his supervisor senthilkumar had admitted him at government stanley hospital, wherein he took treatment as an inpatient for one day and that he was discharged. he deposed that he subsequently took treatment at ramachandran medical college hospital from 27.08.2002, as an outpatient for 30 days. he deposed that he subsequently worked as a trainee in the same firm from 10.09.2002 to 16.09.2002 and that he was subsequently offered a job as an engineer in the design and development wing and that his service was suddenly terminated after six months on 20.04.2003.8. r.w.1 anandakumar had adduced evidence that the applicant was employed as a trainee in their firm and not as a workman and that he was paid a stipend of rs.2,000/- per month and that in the computer bill, it had been mentioned as salary and not stipend. further, he deposed that as per the planning schedule, no job was allotted to anyone in the pressing machine sections for the period from 26.08.2002 to 27.08.2002 and that on 26.08.2002, only fixing work and plating and brushing work were done. he deposed further that on the date of accident, no job was entrusted to the applicant in the workshop and that there was only one shift in their workshop and that there was no night shift duty in their workshop. he deposed that the applicant had stayed in the workshop even after duty hours and that as he had operated the machine at that time, the accident had occurred. he deposed that only an experienced machine operator would be able to carry out machine work in the pressing machine. in support of his evidence, he had marked exs.r1 to r7.9. the deputy commissioner had observed that the opposite party had not produced appointment order to show that the applicant had been employed as a trainee. on scrutiny of ex.r1, it is seen that the applicant had received a monthly salary from june 2002 to october 2002. on scrutiny of ex.r2 voucher, it is seen that salary had been paid to the applicant as an officer and staff and that no stipend had been paid. hence, the tribunal was not inclined to consider the contentions of the opposite party that the applicant was employed as a trainee. further, the deputy commissioner had observed that as per the workmen's compensation act, even a trainee will be considered as a workman only.10. the deputy commissioner, on scrutiny of ex.r7, observed that the jobs planned from 09.00 a.m., to 05.30 p.m., had not been mentioned. the deputy commissioner, on scrutiny of exs.r3 to r7 and on scrutiny of evidence of r.w.1, held that only one shift i.e., day shift from 09.00 a.m., to 05.30 p.m., exists in the opposite party's workshop. the deputy commissioner, on scrutiny of oral and documentary evidence, observed that the applicant had not proved that he sustained injuries in the accident arising out of and while doing his work as a machine operator in the night shift on 26.08.2002, at 09.00 p.m., under the employment of the opposite party. the deputy commissioner further observed that the contentions of the opposite party that the applicant had stayed in the workshop even after duty hours and unauthorizedly operated the pressing machine were admissible and believable. hence, the deputy commissioner of labour, on opining that the injuries caused to the applicant due to his unauthorized operation of the pressing machine in the workshop, after duty hours cannot be taken as one caused during the course of doing his duty in the course of employment under the opposite party and hence dismissed the claim petition.11. aggrieved by the dismissal of his claim, the applicant has preferred the present civil miscellaneous appeal.12. the learned counsel appearing for the appellant has contended in the appeal that the deputy commissioner of labour, after having observed that the opposite party had clearly deposed 'the processing work can be done by a well experienced person alone and the appellant is a well qualified machine operator of that machine and the injuries sustained by him was only from the machine, except him no other operator was then in the factory' erroneously dismissed the claim under some pretext. it is contended that the deputy commissioner after having observed from the evidence of opposite party, who had categorically stated that the applicant had received salary and not stipend and after scrutinizing of ex.r2 salary certificate, erred in dismissing the claim petition, instead of allowing the same. further, it is contended that the tribunal erred in dismissing the claim when the employment and salary of the applicant was accepted and it was established that he was an employee of the said concern and that the accident had occurred during his employment. hence, it is prayed to allow the appeal and grant compensation of a sum of rs.3,00,000/-.13. the learned counsel appearing for the opposite party has vehemently argued that the applicant is a fresh graduate in engineering and he had approached this opposite party to be trained in computer aided design, but he was employed as a machine operator in the opposite party's workshop. the opposite party had been training fresh graduates in it's design and drawing department and the training is for a period of one year and only on successful completion of the training period and depending on merits of the candidate, the candidate would be offered employment in the opposite party's company. no work would be allotted to the trainees during the training period and they would help the regular senior employees in turning out work. thus, giving experience to them in the related field. the highly competent counsel has further submitted that there is no relationship of employee-employer between the applicant and opposite party. the very competent counsel has further submitted that the nature of injuries, period of medical treatment, mode of treatment and disability were also not admitted. hence, the learned counsel prays the court to dismiss the appeal.14. on verifying the factual position of the case and arguments advanced by the learned counsel on either side and on perusing the dismissal order of the deputy commissioner of labour, this court is of the view that the claimant had sustained injuries as per the records marked as medical evidence. besides this, the applicant had issued legal notice to the opposite party and asked them to pay compensation for injuries sustained by him in the course of his employment. this court is of the view that the employment of the applicant had not been denied by the opposite party. as per the workmen's compensation act, even a trainee is considered as a workman. the opposite party has raised a ground that the applicant had unauthorizedly remained in duty after duty hours and had operated the machine without permission. this ground is not based on documentary proof as no reasons have been given by the opposite party as to why the applicant was allowed to remain in the factory after office hours. therefore, this ground is not found fit to be considered. as such, this court is inclined to grant compensation of rs.79,693/- (3,000 x60100 x20100 x22137) under the head of loss of earning due to disability of 20%.15. this court directs the respondent to deposit the above said compensation of rs.79,693 /-, within a period of eight weeks from the date of receipt of a copy of this judgment, to the credit of w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii/commissioner for workmen compensation-2, chennai-6, failing which the compensation amount will carry interest at the rate of 12% per annum, from the date of filing the claim petition till the date of deposit of the said amount.16. after such a deposit having been made, it is open to the appellant/applicant to withdraw the compensation amount, lying in the credit of w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii / commissioner for workmen compensation-2, chennai-6, after filing a memo along with a copy of this judgment and after identification of the applicant by his counsel.17. in the result, this civil miscellaneous appeal is partly allowed and the order dated 24.05.2004, made in w.c.no.195 of 2003, on the file of the deputy commissioner of labour-ii/commissioner for workmen compensation-2, chennai-6, is modified. no costs. 29.10.2013 index : yes/no internet : yes/no krk to:1. the deputy commissioner of labour-ii /commissioner for workmen compensation-2 chennai-6 2.the section officer v.r.section high court, chennai c.s.karnan, j.krk c.m.a.no.2479 of 2006 29.10.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

29. 10.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2479 of 2006 A.Shivaiah ... Appellant Vs. Fues Gear Electrical Limited Velthangai Village Thangalam Ani Sriperumbuthur-602 105 ... Respondent PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of the Workmen Compensation Act, 1925, against the order dated 24.05.2004, made in W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II / Commissioner for Workmen Compensation-2, Chennai-6. For Appellant : Mr.T.Kumar For Respondent : Mr.S.T.S.Murthi - - -

JUDGMENT

The appellant / applicant has preferred the present appeal against the order dated 24.05.2004, made in W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II/Commissioner for Workmen Compensation-2, Chennai-6.

2. The short facts of the case are as follows:- The applicant had filed a claim petition in W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II / Commissioner for Workmen Compensation-2, Chennai-6, against the opposite party, claiming a compensation of Rs.3,00,000/-, for the injuries sustained by him in an accident arising out of and while doing his work during the course of his employment under the opposite party.

3. It was submitted that on 26.08.2002, when the applicant was working as a Machine Operator, in night shift, in the opposite party's firm, his index finger of his left hand was inadvertently drawn into the pressing machine, due to which he sustained injuries. He was admitted at Government Stanley Hospital, wherein his 2nd finger was amputated. Subsequently, he rejoined duty but was removed from service. It was submitted that the applicant had sustained 20% disability due to the injuries sustained in the accident. At the time of accident, the applicant was aged 22 years and was getting a salary of Rs.3,000/- per month. Hence, the applicant had filed the claim petition against the opposite party.

4. The opposite party, in their counter affidavit, had submitted that the applicant was an Engineering Graduate and that he was employed as a Trainee in Computer aided design operations in their firm and had not worked as a machine operator as alleged in the claim. It was submitted that employment would be granted to such trainees only after a period of one year based on their skill in carrying out the designated work. Further, it was submitted that the working session for a trainee in their firm was from 09.00 a.m., to 05.00 p.m., and that the trainee was paid Rs.2,000/- per month as stipend and that trainees were not given any work responsibilities. It was submitted that the applicant had unauthorizedly entered into the pressing machine section of their office and invited the accident. Further, it was submitted that no employer-employee relationship existed between the applicant and the opposite party and that the applicant had not sustained the said injuries while doing his duty in the course of employment under the opposite party. The averments made in the claim petition regarding income, disability and treatment were also not admitted.

5. On considering the averments of both parties, the Deputy Commissioner of Labour-II/Assistant Commissioner of Labour-2, Chennai-6, had framed two issues namely: 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 duty in the course of employment under the first opposite party?. and ii. What is the quantum of compensation, which the applicant is entitled to get?. Who is liable to pay compensation?.

6. On the side of the applicant, the applicant was examined as P.W.1 and three documents were marked as Exs.P1 to P3 namely discharge summary issued at Government Stanley Hospital, Medical Treatment record issued at Sri Ramakrishna Hospital and lawyer notice. On the opposite party's side, one Anandakumar was examined as R.W.1 and nine documents were marked as Exs.R1 to R9 namely salary particulars of the applicant for the period from June 2002 to October 2002, voucher, monthly planning for the month of August 2002, production plan dated 24.08.2002, planning for the period from 26.08.2002 to 27.08.2002, register showing insurance of job card, job card, maintenance advice particulars and training program particulars.

7. P.W.1, the applicant, had adduced evidence that he was working as a machine operator in the opposite party's workshop and that on 26.08.2002 he was working in the night shift duty i.e., from 05.30 p.m., to 02.00 a.m. He deposed that at about 09.00 p.m., when he was operating the pressing machine, his second finger of left hand was crushed due to malfunction of machine and that his supervisor Senthilkumar had admitted him at Government Stanley Hospital, wherein he took treatment as an inpatient for one day and that he was discharged. He deposed that he subsequently took treatment at Ramachandran Medical College Hospital from 27.08.2002, as an outpatient for 30 days. He deposed that he subsequently worked as a trainee in the same firm from 10.09.2002 to 16.09.2002 and that he was subsequently offered a job as an engineer in the design and development wing and that his service was suddenly terminated after six months on 20.04.2003.

8. R.W.1 Anandakumar had adduced evidence that the applicant was employed as a trainee in their firm and not as a workman and that he was paid a stipend of Rs.2,000/- per month and that in the computer bill, it had been mentioned as salary and not stipend. Further, he deposed that as per the planning schedule, no job was allotted to anyone in the pressing machine sections for the period from 26.08.2002 to 27.08.2002 and that on 26.08.2002, only fixing work and plating and brushing work were done. He deposed further that on the date of accident, no job was entrusted to the applicant in the workshop and that there was only one shift in their workshop and that there was no night shift duty in their workshop. He deposed that the applicant had stayed in the workshop even after duty hours and that as he had operated the machine at that time, the accident had occurred. He deposed that only an experienced machine operator would be able to carry out machine work in the pressing machine. In support of his evidence, he had marked Exs.R1 to R7.

9. The Deputy Commissioner had observed that the opposite party had not produced appointment order to show that the applicant had been employed as a trainee. On scrutiny of Ex.R1, it is seen that the applicant had received a monthly salary from June 2002 to October 2002. On scrutiny of Ex.R2 voucher, it is seen that salary had been paid to the applicant as an officer and staff and that no stipend had been paid. Hence, the Tribunal was not inclined to consider the contentions of the opposite party that the applicant was employed as a trainee. Further, the Deputy Commissioner had observed that as per the Workmen's Compensation Act, even a trainee will be considered as a workman only.

10. The Deputy Commissioner, on scrutiny of Ex.R7, observed that the jobs planned from 09.00 a.m., to 05.30 p.m., had not been mentioned. The Deputy Commissioner, on scrutiny of Exs.R3 to R7 and on scrutiny of evidence of R.W.1, held that only one shift i.e., day shift from 09.00 a.m., to 05.30 p.m., exists in the opposite party's workshop. The Deputy Commissioner, on scrutiny of oral and documentary evidence, observed that the applicant had not proved that he sustained injuries in the accident arising out of and while doing his work as a machine operator in the night shift on 26.08.2002, at 09.00 p.m., under the employment of the opposite party. The Deputy Commissioner further observed that the contentions of the opposite party that the applicant had stayed in the workshop even after duty hours and unauthorizedly operated the pressing machine were admissible and believable. Hence, the Deputy Commissioner of Labour, on opining that the injuries caused to the applicant due to his unauthorized operation of the pressing machine in the workshop, after duty hours cannot be taken as one caused during the course of doing his duty in the course of employment under the opposite party and hence dismissed the claim petition.

11. Aggrieved by the dismissal of his claim, the applicant has preferred the present civil miscellaneous appeal.

12. The learned counsel appearing for the appellant has contended in the appeal that the Deputy Commissioner of Labour, after having observed that the opposite party had clearly deposed 'the processing work can be done by a well experienced person alone and the appellant is a well qualified machine operator of that machine and the injuries sustained by him was only from the machine, except him no other operator was then in the factory' erroneously dismissed the claim under some pretext. It is contended that the Deputy Commissioner after having observed from the evidence of opposite party, who had categorically stated that the applicant had received salary and not stipend and after scrutinizing of Ex.R2 salary certificate, erred in dismissing the claim petition, instead of allowing the same. Further, it is contended that the Tribunal erred in dismissing the claim when the employment and salary of the applicant was accepted and it was established that he was an employee of the said concern and that the accident had occurred during his employment. Hence, it is prayed to allow the appeal and grant compensation of a sum of Rs.3,00,000/-.

13. The learned counsel appearing for the opposite party has vehemently argued that the applicant is a fresh graduate in engineering and he had approached this opposite party to be trained in computer aided design, but he was employed as a machine operator in the opposite party's workshop. The opposite party had been training fresh graduates in it's design and drawing department and the training is for a period of one year and only on successful completion of the training period and depending on merits of the candidate, the candidate would be offered employment in the opposite party's company. No work would be allotted to the trainees during the training period and they would help the regular senior employees in turning out work. Thus, giving experience to them in the related field. The highly competent counsel has further submitted that there is no relationship of employee-employer between the applicant and opposite party. The very competent counsel has further submitted that the nature of injuries, period of medical treatment, mode of treatment and disability were also not admitted. Hence, the learned counsel prays the Court to dismiss the appeal.

14. On verifying the factual position of the case and arguments advanced by the learned counsel on either side and on perusing the dismissal order of the Deputy Commissioner of Labour, this Court is of the view that the claimant had sustained injuries as per the records marked as medical evidence. Besides this, the applicant had issued legal notice to the opposite party and asked them to pay compensation for injuries sustained by him in the course of his employment. This Court is of the view that the employment of the applicant had not been denied by the opposite party. As per the Workmen's Compensation Act, even a trainee is considered as a workman. The opposite party has raised a ground that the applicant had unauthorizedly remained in duty after duty hours and had operated the machine without permission. This ground is not based on documentary proof as no reasons have been given by the opposite party as to why the applicant was allowed to remain in the factory after office hours. Therefore, this ground is not found fit to be considered. As such, this Court is inclined to grant compensation of Rs.79,693/- (3,000 X60100 X20100 X22137) under the head of loss of earning due to disability of 20%.

15. This Court directs the respondent to deposit the above said compensation of Rs.79,693 /-, within a period of eight weeks from the date of receipt of a copy of this Judgment, to the credit of W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II/Commissioner for Workmen Compensation-2, Chennai-6, failing which the compensation amount will carry interest at the rate of 12% per annum, from the date of filing the claim petition till the date of deposit of the said amount.

16. After such a deposit having been made, it is open to the appellant/applicant to withdraw the compensation amount, lying in the credit of W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II / Commissioner for Workmen Compensation-2, Chennai-6, after filing a memo along with a copy of this Judgment and after identification of the applicant by his counsel.

17. In the result, this civil miscellaneous appeal is partly allowed and the order dated 24.05.2004, made in W.C.No.195 of 2003, on the file of the Deputy Commissioner of Labour-II/Commissioner for Workmen Compensation-2, Chennai-6, is modified. No costs. 29.10.2013 Index : Yes/No Internet : Yes/No krk To:

1. The Deputy Commissioner of Labour-II /Commissioner for Workmen Compensation-2 Chennai-6 2.The Section Officer V.R.Section High Court, Chennai C.S.KARNAN, J.

krk C.M.A.No.2479 of 2006 29.10.2013