T.N. Narayanaswamy Vs. Pattusamy - Court Judgment

SooperKanoon Citationsooperkanoon.com/819983
SubjectLabour and Industrial
CourtChennai High Court
Decided OnMar-20-1997
Case NumberC.M.A. No. 870/1988
JudgeGovardhan, J.
Reported in(1997)IILLJ23Mad; (1997)IIMLJ221
ActsWorkmen's Compensation Act - Sections 2(1), 10 and 10(1)
AppellantT.N. Narayanaswamy
RespondentPattusamy
Cases ReferredM. L. Marwari v. A. B. Lal
Excerpt:
- 1. this appeal is against the order passed by the commissioner for workmen's compensation, tiruchirapalli w.c. application no. 52/1986.' 2. the petitioner's case is as follows : the applicant has been engaged by the opposite party as a workman under him on october 29, 1984. while the applicant was moving the paddy in paddy thrashing machine, his left leg was crushed and it was operated. the crushed portion was later amputated and the disability has become permanent. the opposite party is evading payment of any compensation in spite of approach made by the petitioner for the same. the applicant-petitioner was earning a sum of rs. 40/- per day. therefore, he makes a claim for rs. 75,000/-. 3. in the written statement, the opposite party contends as follows : the petitioner was not a workman under the opposite party. it is false to say that the respondent engaged the petitioner for moving paddy in the grinding machine. the allegation that the injury was sustained in the course of his employment is not correct. there is no occasion or necessity for the petitioner approaching the respondent and demanding compensation. the petitioner has filed an application claiming that he was a workman employed by the contractor on a monthly salary of rs. 600/- in w.c. case no. 60/1985. in the latter case, viz., in the present case, he has made a claim that he is employed under the respondent on a daily wage of rs. 40/-. the inconsistent conflicting version of the petitioner on the material aspects would prove the falsity of the claim of the petitioner. the petition is r is speculative and is liable to be dismissed. 4. on the above pleadings, the commissioner for workmen's compensation held an enquiry and gave a finding that the applicant worker is an agricultural worker under the respondent and he was engaged in the paddy hulling machine on the date of the accident and that he was a workman within the section 2(1)(n) of the workmen's compensation act. the commissioner has held that the applicant being 20 years old, he is entitled to a compensation of (rs. 16,800/- and directed the opposite party to pay the same within 30 days from the date viz., july 12, 1988. 5. aggrieved over the same, the opposite party has come forward with this appeal. 6. the learned counsel appearing for the appellant challenges the order of the commissioner for workmen's compensation on three a grounds. the first and foremost ground of attack is that the petitioner has not complied with section 10 of the act, which is mandatory in nature, in that, no notice was issued by the petitioner to the opposite party and as such this petition is not maintainable. this argument of the learned counsel appearing for the appellant is not convincing in view of the decision reported in m. l. marwari v. a. b. lal 1958 ii llj 682 (all) wherein it has been held as follows at p 684 : 'the scheme of s. 10 of the workmen's a compensation act is that a notice of the accident to the employer is necessary before a claim for compensation can be entertained by the commissioner. but there are exceptions to this general rule. these exceptions are where the employer had knowledge of the accident from any other source at or about the time when it occurred, want of notice will not obstruct the entertainment of a claim. another exception is where their, commissioner is satisfied that the failure to give notice was due to sufficient cause, under the second proviso to s. 10(1) of the act, want of notice would not operate as a bar to entertainment of a claim, if the employer had knowledge of the accident from any other source at or about the time when it occurred. where no prejudice has been caused to any party, failure to observe the procedure prescribed in rules 20 and 28 of the workmen's compensation rules for hearing the claims must be held to be immaterial.' in the case on hand, the petitioner sustained injuries arising out of and in the course of an accident that took place in the field of the respondent. he became unconscious and he was taken to the thanjavur medical college hospital, where his leg has been amputated. it is a case in which, the respondent cannot plead ignorance of the accident since it is the admitted case of r.w. 1 that he used to engage more than 40 workers for agricultural operations in his field. when the accident had taken place in the field of the respondent where more than 40 employees are working, we can safely hold that the respondent-opposite party would have knowledge of the accident through them, if not through any notice. the failure of the workman to issue a notice to the respondent therefore cannot be considered as a fatal one on the ground that it is not in compliance of section 10 of the workmen's compensation act in view of the decision referred to above. 7. the next contention of the learned counsel appearing for the appellant is that even if the petitioner was engaged as a workman he was only a casual labourer for agricultural operations and section 2(1)(n) is not attracted and the schedule to section 2(1)(n) also does not include in its definition agricultural labourers. section 2(1)(n) of the workmen's compensation act does not exclude workers who have been employed in a casual manner, from the definition of the word 'workman'. any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business is a workman as per the above definition. the work of the petitioner herein cannot be considered to be of a casual nature since grinding or hulling paddy is a regular work to remove the husk. further, it cannot be considered as a work which is not connected with the opposite party's trade or business. therefore, this ground of attack also is not a tenable one. regarding the contention of the learned counsel is appearing for the appellant that the petitioner being an agriculturist, he cannot be considered as a workman and agriculturists are not mentioned in schedule ii is not convincing since clause (xxix) of schedule ii makes any person employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity, as a 'workman'. similarly, clause (xxxviii) which makes any person employed in cultivation of land or rearing or maintenance of livestock or forest operations or fishing in which on any one day of the preceding twelve months more than twenty five persons have been employed, also to be considered as a 'workman'. therefore, the petitioner who was engaged in the grinding machine in the field of the opposite party cannot be excluded from the definition of the word 'workman'. 8. the contention of the learned counsel appearing for the appellant that there was no notice issued by the petitioner before filing this petition and therefore, the petition is not maintainable, is not sustainable on two other grounds also viz., it was the respondent who has admitted the petitioner in the hospital on his sustaining injury. further, the petitioner himself has filed an earlier application on november 8, 1995 in which notice has been served on the opposite party. the scheme of section 10 being conveyance of the information of the accident to the employer, the opposite party cannot plead that there was no notice as contemplated under 10 section 10, and therefore the petition is not maintainable. viewing from any angle, i am of opinion that the appeal is without merit and is liable to the dismissed. 9. in the result, the appeal is dismissed. no costs.
Judgment:

1. This appeal is against the order passed by the Commissioner for Workmen's compensation, Tiruchirapalli W.C. Application No. 52/1986.'

2. The petitioner's case is as follows :

The applicant has been engaged by the Opposite Party as a workman under him on October 29, 1984. While the applicant was moving the paddy in paddy thrashing machine, his left leg was crushed and it was operated. The crushed Portion was later amputated and the disability has become permanent. The Opposite Party is evading payment of any compensation in spite of approach made by the Petitioner for the same. The applicant-petitioner was earning a sum of Rs. 40/- per day. Therefore, he makes a claim for Rs. 75,000/-.

3. In the written statement, the Opposite Party contends as follows : The petitioner was not a workman under the Opposite party. It is false to say that the respondent engaged the petitioner for moving paddy in the grinding machine. The allegation that the injury was sustained in the course of his employment is not Correct. There is no occasion or necessity for the petitioner approaching the respondent and demanding compensation. The petitioner has filed an application claiming that he was a workman employed by the Contractor on a monthly salary of Rs. 600/- in W.C. Case No. 60/1985. In the latter case, viz., in the present case, he has made a claim that he is employed under the respondent on a daily wage of Rs. 40/-. The inconsistent conflicting version Of the petitioner on the material aspects would prove the falsity of the claim of the petitioner. The petition is r is speculative and is liable to be dismissed.

4. On the above pleadings, the Commissioner for workmen's compensation held an enquiry and gave a finding that the applicant worker is an agricultural worker under the respondent and he was engaged in the paddy hulling machine on the date of the accident and that he was a workman within the Section 2(1)(n) of the workmen's Compensation Act. The Commissioner has held that the applicant being 20 years old, he is entitled to a compensation of (Rs. 16,800/- and directed the Opposite Party to pay the same within 30 days from the date viz., July 12, 1988.

5. Aggrieved over the same, the Opposite Party has come forward with this appeal.

6. The learned counsel appearing for the appellant challenges the order of the Commissioner for Workmen's Compensation on three a grounds. The first and foremost ground of attack is that the petitioner has not complied with Section 10 of the Act, which is mandatory in nature, in that, no notice was issued by the petitioner to the Opposite Party and as such this petition is not maintainable. This argument of the learned counsel appearing for the appellant is not convincing in view of the decision reported in M. L. Marwari v. A. B. Lal 1958 II LLJ 682 (All) wherein it has been held as follows at p 684 :

'The Scheme of S. 10 of the Workmen's a Compensation Act is that a notice of the accident to the employer is necessary before a claim for compensation can be entertained by the Commissioner. But there are exceptions to this general rule. These exceptions are where the employer had knowledge of the accident from any other source at or about the time when it occurred, want of notice will not obstruct the entertainment of a claim. Another exception is where their, Commissioner is satisfied that the failure to give notice was due to sufficient cause, under the second proviso to S. 10(1) of the Act, want of notice would not operate as a bar to entertainment of a claim, if the employer had knowledge of the accident from any other source at or about the time when it occurred.

Where no prejudice has been caused to any party, failure to observe the procedure prescribed in Rules 20 and 28 of the Workmen's Compensation Rules for hearing the claims must be held to be immaterial.'

In the case on hand, the petitioner sustained injuries arising out of and in the course of an accident that took place in the field of the respondent. He became unconscious and he was taken to the Thanjavur Medical College Hospital, where his leg has been amputated. It is a case in which, the respondent cannot plead ignorance of the accident since it is the admitted case of R.W. 1 that he used to engage more than 40 workers for agricultural operations in his field. When the accident had taken place in the field of the respondent where more than 40 employees are working, we can safely hold that the respondent-Opposite Party would have knowledge of the accident through them, if not through any notice. The failure of the workman to issue a notice to the respondent therefore cannot be considered as a fatal one on the ground that it is not in compliance of Section 10 of the Workmen's Compensation Act in view of the decision referred to above.

7. The next contention of the learned counsel appearing for the appellant is that even if the petitioner was engaged as a workman he was only a casual labourer for agricultural operations and Section 2(1)(n) is not attracted and the Schedule to Section 2(1)(n) also does not include in its definition agricultural labourers. Section 2(1)(n) of the Workmen's Compensation Act does not exclude workers who have been employed in a casual manner, from the definition of the word 'workman'. Any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business is a workman as per the above definition. The work of the petitioner herein cannot be considered to be of a casual nature since grinding or hulling paddy is a regular work to remove the husk. Further, it cannot be considered as a work which is not connected with the Opposite Party's trade or business. Therefore, this ground of attack also is not a tenable one. Regarding the contention of the learned counsel is appearing for the appellant that the petitioner being an agriculturist, he cannot be considered as a workman and agriculturists are not mentioned in Schedule II is not convincing since clause (xxix) of Schedule II makes any person employed in farming by tractors or other contrivances driven by steam or other mechanical power or by electricity, as a 'workman'. Similarly, clause (xxxviii) which makes any person employed in cultivation of land or rearing or maintenance of livestock or forest operations or fishing in which on any one day of the preceding twelve months more than twenty five persons have been employed, also to be considered as a 'workman'. Therefore, the petitioner who was engaged in the grinding machine in the field of the Opposite Party cannot be excluded from the definition of the word 'Workman'.

8. The contention of the learned counsel appearing for the appellant that there was no notice issued by the petitioner before filing this petition and therefore, the petition is not maintainable, is not sustainable on two other grounds also viz., it was the respondent who has admitted the petitioner in the hospital on his sustaining injury. Further, the petitioner himself has filed an earlier application on November 8, 1995 in which notice has been served on the Opposite Party. The scheme of Section 10 being conveyance of the information of the accident to the employer, the Opposite Party cannot plead that there was no notice as contemplated under 10 Section 10, and therefore the petition is not maintainable. Viewing from any angle, I am of opinion that the appeal is without merit and is liable to the dismissed.

9. In the result, the appeal is dismissed. No costs.