Rengasamy R. Vs. Amalraj A. - Court Judgment

SooperKanoon Citationsooperkanoon.com/826511
SubjectLabour and Industrial
CourtChennai High Court
Decided OnJul-20-2001
Case NumberC.M.A. No. 1136/2000 and C.M.P. No. 10938/2000
JudgePrabha Sridevan, J.
Reported in[2002(92)FLR80]; (2002)IVLLJ852Mad
ActsWorkmen's Compensation Act, 1923 - Sections 2(1)
AppellantRengasamy R.
RespondentAmalraj A.
DispositionPetition allowed
Excerpt:
labour and industrial - compensation - section 2 (1) of workmen compensation act, 1923 - respondent was casual worker engaged in contingency work - sustained grievous injuries while at work - claimed compensation - compensation commissioner awarded amount more than what claimed by respondent - employer's appeal - respondent failed to prove that he was workman and accident occurred in manner stated by him - held, commissioner exceeded its jurisdiction by awarding compensation higher than claimed. - prabha sridevan, j.1. notice of motion was ordered in the civil miscellaneous appeal and so the matter was taken up. the opposite party in the workmen's compensation claim is the appellant herein.2. the facts of the case are as follows;the respondent herein claiming to be a helper on daily wages earning a sum of rs. 75 per day for more than three years had been engaged by the petitioner for contingency work like office maintenance, liaison, cleaning and painting work. according to the workman/ respondent in the course of such employment, the services of the petitioner was also used for work at respondent's residence. on november 14, 1995 at 12 noon when the respondent was white washing the house belonging to the petitioner, he fell down from the building and sustained grievous injuries. he was treated in the government hospital in tiruchirapalli and became disabled and therefore, compensation of a sum of rs 10,000 was claimed.3. the appellant herein denied that the respondent was a workman engaged by him. he denied the claim as a false claim. it was also denied that at any point of time the respondent had white washed his house. the claim itself was said to be false. the workmen's compensation commissioner awarded a compensation of a sum of rs. 37,515 against which the present appeal has been filed.4. mr. bharathachakravarthy, learned counsel for the appellant submitted that the award has to be set aside on the following grounds:(1) the respondent is not a workman as per the act. (2) the respondent had not proved that he had an employer- employee relationship with the appellant. (3) the quantum is excessive in any event. the case of the respondent is that he was doing office maintenance, cleaning and liaison work for the appellant and incidentally some work in the house. whereas the appellant has a barber shop and therefore, this itself would show that the claim is false. the learned counsel also submitted that the only ground on which the liability was fixed on the appellant is on the basis of the wound certificate in which the person who had admitted the respondent in the hospital is shown to be rangasamy mudalali. when the appellant had totally denied the knowledge about the accident or the fact that the accident occurred in his house, the commissioner ought not to have fixed the liability merely on the basis of that entry. the learned counsel also submitted that even according to the respondent he is only employed as and when contingency arises. the presumption drawn by the commissioner on account of the non-production of the employment register was totally wrong. when even the respondent had not claimed that he had been regularly on the pay roll of the appellant there was no need for the appellant to produce, those registers. he also submitted that when the claim of the respondent himself was only for a sum of rs. 10,000, the workmen's compensation commissioner exceeded his jurisdiction by awarding a sum of rs. 37,515. on all these grounds, the learned counsel pray that the appeal may be allowed.5. the learned counsel for the respondent on the other hand submitted that p. w. 2, joseph had clearly said that the accident occurred only while the respondent was in the employment of the appellant and therefore, the employer-employee relationship had been established and proved to the satisfaction of the commissioner. he also submitted that the injuries were very grievous in nature and the doctor had given certificate of 35% and only on this basis that the compensation had been given. the learned counsel therefore, prayed that the award of the commissioner must be set aside.6. the definition of workmen in the workmen's compensation act is as follows:'is a person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.'therefore, by virtue of the definition any person whose employment is of a casual nature and who is not employed for the employer's trade or business is not a workman. in this case, even according to the respondent he was given only contingency work which is clearly a work of casual nature. though in the petition he would state that he was working as a helper for daily wages for more then three years, in the evidence he had stated that he had been working for the appellant for four months. again according to the petition, the respondent's services were engaged for office maintenance, liaison, cleaning and painting work. it is clear fromthis that the respondent does not even know that the appellant's trade is a barber shop. in the evidence the respondent has stated as follows:vernacular matter omitted. in the cross examination he says, vernacular matter omitted. it is clear therefore, from his evidence that he has not stated that he is employed in the course of the appellant's trade or occupation. even assuming his claim is true, he used to help in the house but not in the appellant's trade or occupation. therefore, the respondent has not established that there was an employer-employee relationship between him and the appellant.7. now we come to the manner of the accident. in the petition, the respondent states that he fell down from the building when he was white washing the house. in his evidence he has stated that he fell down when he was cleaning the cob-webs. the evidence of p.w.2 is that the respondent climbed the ladder to clean the cob-webs and at that time he fell down. the wound certificate, ex. a-1 also shows that the injuries were caused by a fall from the ladder. therefore, the petitioner's case that he fell down from the building while white washing is contradicted by his own evidence and the evidence of p.w.2. the presence of joseph is also extremely unnatural. it is not the respondent's case that the appellant also engaged joseph for white washing purposes. it is also not the evidence of p.w.2 that he was also a co-worker along with the respondent under the appellant. it is his case that the respondent called him to assist him for white washing on november 14, 1995 and at that time the accident occurred. the presence of joseph is extremely unnatural and appears to be introduced only to set up the case of the accident. the presence of joseph, is also not mentioned in the petition. the evidence of r.w. 1 the appellant on the other hand is that on november 14, 1995 no white washing was done in his house and he also denies admitting the respondent in the hospital. therefore, the occurrence of the accident is also not free from doubt and the case of the petitioner that he suffered the accident while white washing by falling from the building is contradictory from his own evidence, that the accident occurred when he was cleaning the cob-webs. therefore, the case is not free from doubt or proved beyond doubt.8. the commissioner appears to have been persuaded by the entry in ex. b-1 which is marked through the respondent herein. the entry by the duty orthopaedic doctor shows that he was accompanied by one rangasamy mudalali. this information could have been deliberately given by the respondent herein and it does not conclusively prove, in any manner that it was the appellant who accompanied the respondent while admitting in the hospital. it is also not believable that joseph the friend, whom he had taken along to white wash in the house should not have accompanied the respondent to the hospital especially when the respondent had sustained grievous injuries. but that is not the case. joseph, p.w.2 appears to have returned to his house immediately after the accident. this also appears unbelievable. the respondent has not produced any materials to show that the accident happened in the manner stated by him in the petition.9. now we come to the compensation. the petitioner himself has claimed only a sum of rs. 10,000. according to him he was earning a sum of rs. 2,500 per month. it must be remembered that the appellant's trade is a barber shop in a village. the respondent admittedly is not even one of the barbers, who assist him in their trade and in those circumstances it is highly incredible that a owner of a small barber shop would be paying a sum of rs. 2,500 to a person who does contingency work like white washing. this is one feature which would show that the respondent has ventured on this litigation to try to encash as much as possible. the injury is a fracture. the commissioner has applied the factor of 184.17, which is applicable only in cases of permanent disability or death. the injury mentioned in the petition is not a permanent disability as per the schedule injuries of the act. therefore, the factor applied is also wrong. the commissioner arbitrarily fixes the income at the rate of rs.710 and adding allowance arrives at rs. 970 as the income based on shops and establishments act. there was absolutely no justification for the commissioner to do so. when the respondent's case itself is that he was only a casual worker engaged for contingency work, the commissioner grievously erred in drawing an adverse inference for the non-production of the employment register of the appellant. the respondent has neither established that he was a workman covered by the provisions of the act nor that the accident had occurred in the manner stated by him, nor has the proved the wages received by him. the commissioner has also exceeded the jurisdiction given to him under the act by awarding the compensation that is uncalled for. the commissioner has not at all applied his mind to the materials onrecord. the order of the commissioner is setaside.10. the workmen's compensation act is a beneficial piece of litigation that has been enacted to compensate the workmen and their dependents in the event of accidents during the course of employment. it is not to be used to extort money from people with whom there is no nexus of employment as provided under the act. it is unfortunate that a beneficial enactment such as this, is misused by some persons. the authorities should be more cautious while discharging their duties under the act and deciding the claims.11. in the circumstances of the case the c.m.a. is allowed with costs. consequently, the connected c.m.p. is closed.
Judgment:

Prabha Sridevan, J.

1. Notice of motion was ordered in the civil miscellaneous appeal and so the matter was taken up. The opposite party in the workmen's compensation claim is the appellant herein.

2. The facts of the case are as follows;

The respondent herein claiming to be a helper on daily wages earning a sum of Rs. 75 per day for more than three years had been engaged by the petitioner for contingency work like office maintenance, liaison, cleaning and painting work. According to the workman/ respondent in the course of such employment, the services of the petitioner was also used for work at respondent's residence. On November 14, 1995 at 12 noon when the respondent was white washing the house belonging to the petitioner, he fell down from the building and sustained grievous injuries. He was treated in the Government Hospital in Tiruchirapalli and became disabled and therefore, compensation of a sum of Rs 10,000 was claimed.

3. The appellant herein denied that the respondent was a workman engaged by him. He denied the claim as a false claim. It was also denied that at any point of time the respondent had white washed his house. The claim itself was said to be false. The Workmen's Compensation Commissioner awarded a compensation of a sum of Rs. 37,515 against which the present appeal has been filed.

4. Mr. Bharathachakravarthy, learned counsel for the appellant submitted that the award has to be set aside on the following grounds:

(1) The respondent is not a workman as per the Act.

(2) The respondent had not proved that he had an employer- employee relationship with the appellant.

(3) The quantum is excessive in any event.

The case of the respondent is that he was doing office maintenance, cleaning and liaison work for the appellant and incidentally some work in the house. Whereas the appellant has a barber shop and therefore, this itself would show that the claim is false. The learned counsel also submitted that the only ground on which the liability was fixed on the appellant is on the basis of the wound certificate in which the person who had admitted the respondent in the Hospital is shown to be Rangasamy Mudalali. When the appellant had totally denied the knowledge about the accident or the fact that the accident occurred in his house, the Commissioner ought not to have fixed the liability merely on the basis of that entry. The learned counsel also submitted that even according to the respondent he is only employed as and when contingency arises. The presumption drawn by the Commissioner on account of the non-production of the employment register was totally wrong. When even the respondent had not claimed that he had been regularly on the pay roll of the appellant there was no need for the appellant to produce, those registers. He also submitted that when the claim of the respondent himself was only for a sum of Rs. 10,000, the Workmen's Compensation Commissioner exceeded his jurisdiction by awarding a sum of Rs. 37,515. On all these grounds, the learned counsel pray that the appeal may be allowed.

5. The learned counsel for the respondent on the other hand submitted that P. W. 2, Joseph had clearly said that the accident occurred only while the respondent was in the employment of the appellant and therefore, the employer-employee relationship had been established and proved to the satisfaction of the Commissioner. He also submitted that the injuries were very grievous in nature and the Doctor had given certificate of 35% and only on this basis that the compensation had been given. The learned counsel therefore, prayed that the award of the Commissioner must be set aside.

6. The definition of Workmen in the Workmen's Compensation Act is as follows:

'Is a person other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business.'

Therefore, by virtue of the definition any person whose employment is of a casual nature and who is not employed for the employer's trade or business is not a workman. In this case, even according to the respondent he was given only contingency work which is clearly a work of casual nature. Though in the petition he would state that he was working as a helper for daily wages for more then three years, in the evidence he had stated that he had been working for the appellant for four months. Again according to the petition, the respondent's services were engaged for office maintenance, liaison, cleaning and painting work. It is clear fromthis that the respondent does not even know that the appellant's trade is a barber shop. In the evidence the respondent has stated as follows:

Vernacular matter omitted.

In the cross examination he says,

Vernacular matter omitted.

It is clear therefore, from his evidence that he has not stated that he is employed in the course of the appellant's trade or occupation. Even assuming his claim is true, he used to help in the house but not in the appellant's trade or occupation. Therefore, the respondent has not established that there was an employer-employee relationship between him and the appellant.

7. Now we come to the manner of the accident. In the petition, the respondent states that he fell down from the building when he was white washing the house. In his evidence he has stated that he fell down when he was cleaning the cob-webs. The evidence of P.W.2 is that the respondent climbed the ladder to clean the cob-webs and at that time he fell down. The wound certificate, Ex. A-1 also shows that the injuries were caused by a fall from the ladder. Therefore, the petitioner's case that he fell down from the building while white washing is contradicted by his own evidence and the evidence of P.W.2. The presence of Joseph is also extremely unnatural. It is not the respondent's case that the appellant also engaged Joseph for white washing purposes. It is also not the evidence of P.W.2 that he was also a co-worker along with the respondent under the appellant. It is his case that the respondent called him to assist him for white washing on November 14, 1995 and at that time the accident occurred. The presence of Joseph is extremely unnatural and appears to be introduced only to set up the case of the accident. The presence of Joseph, is also not mentioned in the petition. The evidence of R.W. 1 the appellant on the other hand is that on November 14, 1995 no white washing was done in his house and he also denies admitting the respondent in the hospital. Therefore, the occurrence of the accident is also not free from doubt and the case of the petitioner that he suffered the accident while white washing by falling from the building is contradictory from his own evidence, that the accident occurred when he was cleaning the cob-webs. Therefore, the case is not free from doubt or proved beyond doubt.

8. The Commissioner appears to have been persuaded by the entry in Ex. B-1 which is marked through the respondent herein. The entry by the duty Orthopaedic Doctor shows that he was accompanied by one Rangasamy Mudalali. This information could have been deliberately given by the respondent herein and it does not conclusively prove, in any manner that it was the appellant who accompanied the respondent while admitting in the hospital. It is also not believable that Joseph the friend, whom he had taken along to white wash in the house should not have accompanied the respondent to the hospital especially when the respondent had sustained grievous injuries. But that is not the case. Joseph, P.W.2 appears to have returned to his house immediately after the accident. This also appears unbelievable. The respondent has not produced any materials to show that the accident happened in the manner stated by him in the petition.

9. Now we come to the compensation. The petitioner himself has claimed only a sum of Rs. 10,000. According to him he was earning a sum of Rs. 2,500 per month. It must be remembered that the appellant's trade is a barber shop in a village. The respondent admittedly is not even one of the barbers, who assist him in their trade and in those circumstances it is highly incredible that a owner of a small barber shop would be paying a sum of Rs. 2,500 to a person who does contingency work like white washing. This is one feature which would show that the respondent has ventured on this litigation to try to encash as much as possible. The injury is a fracture. The Commissioner has applied the factor of 184.17, which is applicable only in cases of permanent disability or death. The injury mentioned in the petition is not a permanent disability as per the schedule injuries of the Act. Therefore, the factor applied is also wrong. The Commissioner arbitrarily fixes the income at the rate of Rs.710 and adding allowance arrives at Rs. 970 as the income based on Shops and Establishments Act. There was absolutely no justification for the Commissioner to do so. When the respondent's case itself is that he was only a casual worker engaged for contingency work, the Commissioner grievously erred in drawing an adverse inference for the non-production of the employment register of the appellant. The respondent has neither established that he was a workman covered by the provisions of the Act nor that the accident had occurred in the manner stated by him, nor has the proved the Wages received by him. The Commissioner has also exceeded the Jurisdiction given to him under the Act by awarding the compensation that is uncalled for. The Commissioner has not at all applied his mind to the materials onrecord. The order of the Commissioner is setaside.

10. The Workmen's Compensation Act is a beneficial piece of litigation that has been enacted to compensate the workmen and their dependents in the event of accidents during the course of employment. It is not to be used to extort money from people with whom there is no nexus of employment as provided under the Act. It is unfortunate that a beneficial enactment such as this, is misused by some persons. The authorities should be more cautious while discharging their duties under the Act and deciding the claims.

11. In the circumstances of the case the C.M.A. is allowed with costs. Consequently, the connected C.M.P. is closed.