Chandrakant Bhagwandas ... vs Sudhamati Prabhu Jadhavar And Ors
2017 Latest Caselaw 8163 Bom

                                   1                           FA-3930-16-J-I


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                      FIRST APPEAL NO. 3930 OF 2016

 Chandrakant S/o Bhagwandas Toshniwal,
 Age: 70 years, occ: Agri.
 R/o Shiradhon, Tq. Kalamb,
 Dist-Osmanabad.                     ...APPELLANT
                                     (Ori. Respondent)

 V E R S U S.

 1.       Sudhamati W/o Prabhu Jadhavar,
          Age: 53 years, Occ: Household,

 2.       Haribhau S/o Prabhu Jadhavar,
          Age: 33 years, Occ: Labour,

 3.       Bhaskar S/o Prabhu Jadhavar,
          Age: 21 years, Occu: Education,
          All R/o Tadgaon, Tq. Kalamb,
          Dist. Osmanabad, now residing
          At Wanjarwadi, Tq. Renapur,
          Dist. Latur.                       .... RESPONDENTS.
                                               (Ori. Applicants)
                                    ...
 Mr. B.A. Darak, Advocate for appellant.
 Mr. B.R. Kedar, Advocate for respondents No. 1 to 3
                                   ....

                                  CORAM : K.K. SONAWANE, J.

RESERVED ON : 7TH SEPTEMBER, 2017.

PRONOUNCED ON : 13 TH OCTOBER, 2017.

JUDGMENT :-

1. This is an appeal under section 30 of the Workmen's

Compensation Act, 1923 against impugned order dated

09-08-2016 passed by the Ex-officio Commissioner of Workmen's

Compensation and Judge, Labour Court, Latur in the proceedings

2 FA-3930-16-J-I

(WCA No. 42 of 2013) filed on behalf of present respondents -

original applicants for compensation towards loss to the family on

account of death of victim Prabhu Hari Jadhavar occurred due to

electrocution during the course of his employment as "Salgadi"

(Labour on yearly basis ) i.e. workman as envisaged under

section 2(1) (n) of the Workmen's Compensation Act, 1923 ( for

short "Act of 1923").

2. Factual matrix of the case in nutshell is that, ill-fated victim

Prabhu Jadhavar resident of Tadgaon Ta. Kallam District

Osmanabad was the husband of appellant No. 1 and father of

respondents No. 2 and 3- original applicant. The appellant-

original respondent was the owner and in occupation of

agricultural land Gut No. 148 located within vicinity of village

Shiradhon Ta. Kallam District Osmanabad. The appellant-owner

of the agricultural land employed the victim Prabhu Jadhavar as

"Salgadi" to look after the agricultural operation in his land on

yearly basis. The person, namely, Rambhau Kisan Somase was

also employed as "Salgadi" on yearly basis for doing the

agricultural work accompanied with victim Prabhu Jadhavar. Both

victim Prabhu and Rambhau were looking after the entire

agricultural operation in the field of the appellant-original

respondent. It has been contended that the victim Prabhu was

engaged to do the agricultural labour work for the year 2005-

 2006.      The      remuneration         of       Rs.   36,000/-      per    annum        i.e.



                                3                               FA-3930-16-J-I

Rs. 3000/- per month was fixed to be paid to the victim Prabhu.

Accordingly, during the relevant period of mishap, victim Prabhu

used to do entire agricultural work in the field, as per instructions

of the appellant Shri Chandracant Toshniwal. There was electric

motor fitted on the well located in the field of appellant-original

respondent for irrigation purpose. There was no terminal box for

electric motor, but it was tied with GI wire to protect the electric

motor from being fallen in the well and end of GI wire was left

abandon by tying it to Babul tree.

3. According to the original applicant-family members of victim

Prabhu, on the fateful day of mishap i.e. on 17-07-2005 victim

Prabhu and his associate Rambhau, as usual since morning

started their agricultural work in the field of the appellant-original

respondent. But, it had something different in-store for the victim

Prabhu. At about 9.00 a.m. Victim Prabhu switched on the

electric motor installed on the well for watering the crops and

indulged in the agricultural work of cutting grass nearby the well,

unaware of his tragic end within short period. While cutting the

grass victim Prabhu came into contact with GI wire tied with

electric motor. There was electric supply in the GI wire from

electric motor. Due to severe electric shock victim Prabhu

breathed his last on the spot. In view of instant death of victim

Prabhu in the field of appellant-original respondent following

electrocution, the information was passed on to owner of the land

4 FA-3930-16-J-I

i.e. appellant as well as concerned Police of Shiradhon Police

Station, Ta. Kallam, District Osmanabad. The adjoining land

owners, Police personnel and appellant-owner of the land,

thronged at the scene of occurrence. The labour Shri Rambhau

Songane lodged the report of accidental death of his associate

victim Prabhu owing to electrocution by live GI wire tied with

electric motor fitted on the well in the field of appellant-original

respondents. Pursuant to accidental report of Rambhau

Songane, Police of Shirdhone Police Station registered A.D. No.

22 of 2005 under section 174 of the Criminal Procedure Code

and set the enquiry of accidental death of victim Prabhu in

motion. Police drawn the panchnama of scene of occurrence.

The dead body was escorted to the Primary Health Centre,

Shiradhon for autopsy to ascertain the exact cause of death. The

medical experts conducted post mortem and opined that the

death of Prabhu was caused due to thermal injuries following

electric shock. Inquest panchnama was also drawn. The Office

Personnel of Electricity Department at Latur visited to the spot of

incident for inspection purpose. They forwarded report to the

concerned Tahsildar that victim Prabhu died due to electrocution

after coming into contact with GI wire/cable tied with electric

motor installed on the well in the field of appellant-original

respondent.

                                     5                              FA-3930-16-J-I

 4.        Due to sudden demise of        earning member of the family

the applicants-respondents were in shock and financial crises.

They requested the appellant-original respondent (owner of the

field) to compensate the loss. He had given assurance for

payment of compensation after harvesting the crops, but efforts

did not evoke result. The alleged death of victim Prabhu was

caused due to electrocution arising out of and in the course of

employment of the appellant-original respondent. The applicants-

respondents herein had issued legal notice to the appellant-

owner of the field, but no response received and eventually

applicants being legal dependents of deceased Prabhu rushed to

the learned Commissioner of Workmen's Compensation, Latur

and preferred the application for compensation. It is asserted

that in view of remuneration of the victim Prabhu @ Rs. 3000/-

per month the applicants are entitled to receive compensation of

Rs. 2,29,500/- from the employer. It has been contended that at

the time of mishap, the victim Prabhu was 50 years old and

therefore, after mathematical calculations as per factor given in

Schedule IV of Section 4 of the Act of 1923, the reasonable

compensation would accrued to Rs. 2,29,500/- payable to

applicants respondents herein, being dependents of the victim

Prabhu.

5. On receipt of notice of the application for compensation

filed before the learned Commissioner, the appellant-original

6 FA-3930-16-J-I

respondent appeared and vociferously opposed the contentions

put-forth on behalf of respondents herein-original applicants by

filing written statement on record. The appellant-original

respondent denied about employment of victim Prabhu on yearly

basis as "Salgadi" in his field. He denied about accidental death

of victim Prabhu due to electrocution, arising out of and in the

course of his employment. It has also averred in the written

statement that victim Prabhu visited to the field of appellant-

original respondent to see his associate Shri Rambhau Somase,

the another "Salgadi" (Labour employed on yearly basis). At that

time victim Prabhu went to the well for drinking water, but he

received the electric shock at the well due to his negligent

conduct and he breathed his last. Therefore, appellant has no

concerned with alleged accidental death of victim Prabhu for

compensation.

6. To buttress the of contentions, applicant No. 1 Sudamati

w/o Prabhu Jadhavar stepped into the witness box to adduce

evidence. She produced relevant documents in support of claim.

The appellant owner of land also adduced the evidence to

traverse contentions put-forth on behalf of applicants-claimants.

The learned Commissioner, after appreciating entire evidence

adduced on record arrived at the conclusion that respondents-

original applicants being dependents of victim Prabhu are entitled

to receive compensation of Rs. 2,29,635/- from the appellant

7 FA-3930-16-J-I

employer. It was also held that victim Prabhu Hari Jadhavar was

workman employed by the appellant as "Salgadi" and during the

course of employment as workman he breathed his last in the

field of appellant-original respondent accidentally. Accordingly,

the learned Commissioner passed the impugned order, the

validity and propriety of which, is agitated in the present appeal.

7. The provisions of section 30 of the Act of 1923 provides

that an appeal shall lie to the High Court against an order of the

Commissioner awarding as compensation lump sum whether by

way of a redemption of a half monthly payment or otherwise

disallowing any claim in full or in part for a lump sum. It has also

prescribed that no appeal shall lie against any order unless

substantial question of law is involved in the appeal.

8. In view of the aforesaid provisions of Section 30 of the Act

of 1923 it would fallacious to appreciate any of the factual

determination which have been made in the impugned order

passed by the learned Commissioner. However, the mode and

tenor of the argument advanced on behalf of appellant, reflects

that the substantial question of law involved in this appeal is as

to whether the deceased Prabhu Hari Jadhavar was the workmen

as envisaged under section 2(1)(n) of the Act of 1923 and his

death was caused by electrocution, arising out of and in the

course of his employment. Provisions of Section 2(1)(n) reads as

8 FA-3930-16-J-I

under:

"2: Definitions-(1) In this Act, unless there is anything repugnant in the subject or context,-

(n) "Workman" means any person [***] who is-

(i) a railway servant as defined in [Clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in schedule II, or

(i-a) (a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or]

(ii) employed 21 [ ***] 22[***] in any such capacity as is specified in schedule II,

whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of [ the armed forces of the Union] 24[***]; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."

9 FA-3930-16-J-I

9. Schedule II of the Workmen's Compensation Act, 1923,

contains a list of persons who, subject to the provisions of section

2(1)(n) of the Workmen's Compensation Act, 1923 are included

in the definition of workman. Entry (xxix) thereof provides as

follows" "employed in farming by tractors or other contrivances

driven by steam or other mechanical power or by electricity". The

entry has since been enlarged by amending Act 30/1995, which

was brought into force on 15-09-1995. Ultimately the question

is, as to whether the deceased Prabhu was the workmen under

Schedule II Entry (xxix) of the Act of 1923 and he was employed

in the farming by appellant as workman as per Entry (xxix).

10. While allowing the claim for compensation learned

Commissioner observed that the deceased Prabhu Hari Jadhavar

was engaged by the appellant as "Salgadi" for agricultural labour

work on yearly basis for the year 2005-2006. The appellant-

employer was paying the salary of Rs. 36,000/- per annum. It

was held that during the course of employment, while cutting the

grass nearby well the deceased Prabhu came in contact with live

GI cable tied with electric motor and received severe electric

shock and died on the spot. According to learned Commissioner,

the circumstances adumbrates the relationship between appellant

- land owner and deceased Prabhu in the capacity being

employer and employee. Learned Commissioner concluded that

10 FA-3930-16-J-I

applicants have successfully proved that they are entitled for

compensation under the Act of 1923 for accidental death of their

family member deceased Prabhu Hari Jadhavar. The applicants

also produced documents on record comprising A.D. report, spot

panchnama, post mortem report, Electrical Inspector's report to

fortify the contentions of accidental death of Prabhu in the filed of

the appellant-employer following electrocution. These documents

categorically reflect that the death of victim Prabhu occurred in

the field of appellant accidentally due to electrocution.

11. Provisions of section 3 of the Act of 1923 reflects that in

order to sustain the claim for compensation, injury must be

caused to workmen by accident arising out of and in the course

of his employment. The death or injury has to be to a workmen

in order to sustain the claim of compensation. The accidental

death should have some nexus and proximity with the

employment. It must be shown occurred out of and in the course

of employment. Section 2(1)(n) of the Act of 1923 defines a

person, who is workmen as referred supra. Therefore, in order to

be a workmen as contemplated in Section 2(1)(n) of the Act of

1923, the person must be employed in one of the capacities

specified in Scheduled II of the Act of 1923.

12. The Entry (xxix) of Schedule II covers employment in

framing by tractor or other contrivances driven by steam or other

11 FA-3930-16-J-I

mechanical power or by electricity. Parliament has restricted the

operation of Entry (xxix) to the employment in farming by

specified modes. The object and purpose of the Legislature was,

obviously, seen not to cover persons employed in all kinds of

farming, but to cover cases where the farming is being carried

out through one of the specified modes. The first mode is farming

by tractor and thereafter it is followed by a residuary clause,

which contemplates the farming by other contrivances driven by

steam or other mechanical power or by electricity. The

expression other contrivances would cover the other devices to

carry out farming activities. The activities should be by device

which used to be driven by steam or other mechanical power or

by electricity. It is rule of law that the words of Entry (xxix)

ought not to be given a narrow or restricted operation. At the

same time it would imperative to take into consideration the

circumstances in which the Legislature has to specified three

sources, which set in motion the operation of contrivances used

in the farming. These three sources would be by steam or other

mechanical power or by electricity.

13. In the instant matter, the appellant - land owner since

beginning clamoring on the issue of employer - employee

relationship in between himself and deceased Prabhu. But, there

was no averment or pleading the written statement filed on his

behalf that deceased Prabhu was not the workman as per Section

12 FA-3930-16-J-I

(2)(n) of the Act of 1923. Moreover, there was no whisper that

the farming in the present case was not being carried out by

tractor or by other contrivances driven by steam or other

mechanical power or by electricity. But, the appellant-land owner

opposed the contentions putforth on behalf of claimants-

dependents of the deceased Prabhu on the grounds that he was

not employed as "Salgadi" for agricultural operation in the filed of

appellant on yearly basis. However, in view of evidence on record

as well as the documents comprising the report of Somase,

associate of deceased Prabhu and one of the employee of land

owner-appellant, spot inspection report of Electrical Inspector,

inquest panchnama and oral testimony of applicant Sudamati

Jadhavar would goes to show that while cutting the grass

deceased Prabhu came into contact with GI live cable of the

electric motor and breathed his last. The A.D. Report of Rambahu

Somase indicate that the victim Prabhu switched on the electric

motor for watering the crop and started his other work of cutting

the grass nearby the well. These circumstances would reflects

that the victim Prabhu was utilizing the device of electric motor

for watering the crops in the field of appellant. It is to be noted

that in cases under Workmen's Compensation Act, 1923 the strict

application of C.P.C. or evidence Act is - impermissible.

Therefore, the inference can be drawn that there was employer

and employee relationship in between the appellant and

13 FA-3930-16-J-I

deceased Prabhu.

14. Obviously, question as to whether the person is workmen

or not is the jurisdictional issue which goes to the root of the

claim for compensation under the Act of 1923. Therefore, it was

incumbent for the applicants - claimants to establish at the

inception that the deceased was a workmen within the meaning

of Act of 1923. Moreover, if the exception from the definition of

the phrase "workmen" is to be established burden to do so would

lie on the employer. In the instant case, when it was established

that the deceased after switched on the electric motor for

watering the crops, started doing agricultural work of cutting the

grass in the field nearby the well of appellant and during the

course of his employment he succumbed to the electric shock the

burden to establish, the exception would lie on the employer.

15. It is worth to mention that, the defence of the appellant-

land owner was that he was not the owner of the agricultural land

of the spot of incident. The victim Prabhu was not his employee

for agricultural labour work. But the land was mutated in the

name of his mother. These factual aspect cannot be the subject

matter of present appeal within the ambit of section 30 of Act of

1923. Be that as it may, the appellant-respondent did not plead

that he was not carrying on farming activities in any way of the

modes specified in Entry (xxix) of Act of 1923. It was not

14 FA-3930-16-J-I

specifically incorporated in the written statement of appellant

filed before the Commissioner. In such peculiar circumstances, I

am of the opinion that the question of law, which has been

sought to be canvassed on behalf of appellant in this appeal, was

without laying foundation of the facts before the learned

Commissioner in the original proceedings. The question as to

applicability of the Entry (xxix) of the Act of 1923 would have

arisen if that question was put in issue and dispute was raised on

behalf of appellant before the learned Commissioner. But, written

statement of the appellant filed before the learned Commissioner

appears silent and there was no whisper about the applicability

of the Entry (xxix) of the Act of 1923, in this case. In these

circumstances, when dispute was not raised by the appellant in

regard to the applicability of Entry (xxix) before learned

Commissioner, it would not be appropriate and justifiable for the

appellant to now contend these facts particularly within the

parameters of an appeal under section 30 of the Act of 1923.

16. The factum of bare denying employer and employee

relationship would not itself sub-serve the purpose to discharge

the burden cast on the employer relating to applicability of the

Entry (xxix) of the Act of 1923 in this case. In contrast, the

circumstances brought on record manifestly demonstrate that the

deceased Prabhu was engaged for agricultural labour work. He

was utilizing the electric motor as an device for watering the

15 FA-3930-16-J-I

crops. He used to look after irrigation of the field on behalf of

appellant. But, during the course of employment he died due to

electrocution, after switched on the electric motor for the purpose

of watering crops. In such circumstances, it would unsafe to

draw adverse inference that he was not workmen. No any

evidence on the part of employer, available on record that he was

not carrying farming in any way of the modes specified in the

Entry (xxix) i.e. farming by other contrivances driven by steam of

other mechanical power or by electricity. Moreover, in absence

of any averments in the written statement, it would hazardous to

brush aside the evidence adduced on record on behalf of

applicants - respondents herein to prove that he was the

workman engaged for agricultural labour work in the field of the

appellant. There was employer and employee relationship in

between appellant and deceased Prabhu. His death was caused in

the field of the appellant accidentally arising out of and during

the course of his employment.

17. It would be reiterated that, the question of the appellant-

original respondent leading evidence to establish employment in

the capacity set out in the Entry (xxix) would have arisen if that

was placed in issue by the appellant. But, it appears that there

was no endeavour to that effect in the proceeding before the

learned Commissioner. In such peculiar circumstances, I am of

the view that order of compensation in the facts and

16 FA-3930-16-J-I

circumstances passed by the learned Commissioner would not be

faulted or blamed being erroneous and perverse one. There is no

propriety to cause any interference in the findings expressed by

the learned Commissioner and the same are required to be made

confirm and absolute.

18. Learned counsel for the appellant made valiant attempt to

raise point of limitation at this stage in the appeal. It has been

alleged that applicant filed the application for compensation after

efflux of colossal period of alleged incident as prescribed under

section 10 of the Act of 1923. He submits that there is no

provision for condonation of delay under section 10 of the Act of

1923. Therefore, the application for compensation being time

barred application, the same deserves to be dismissed. I find it

painful to accept the submission advanced on behalf of learned

counsel for the appellant for the reason that so-called issue of

limitation was not raised at the initial stage of the proceedings

before the learned Commissioner. No doubt, under section 10(1)

of the Act of 1923, the claim for compensation is required to be

preferred within two years of the occurrence of accident or, in

case, of death within two years from the date of death. The fifth

proviso to sub-section (1) contemplates that the Commissioner

may entertain and decide any claim to compensation, in any case

notwithstanding that it has not been preferred in due time as

provided in the said sub-section, if he is satisfied that the failure

17 FA-3930-16-J-I

to prefer the claim was due to sufficient cause. In the instant

case, the appellant-respondent did not raise objection about

application being time barred before the learned Commissioner

and when the application was entertained and dealt with by the

learned Commissioner finally on merit in presence of appellant, it

would be unjust and improper to allow the appellant to raise such

objection on the point of limitation at this belated stage in the

appeal.

19. In the above premise, I am of the opinion that there is no

propriety to cause any interference at the behest of appellant-

original respondent, in the findings expressed by the learned

Commissioner. The impugned order cannot be faulted nor

blamed being perverse. Therefore, I prefer to confirm the

operative order passed by learned Commissioner. In the light of

above, the appeal stands dismissed. No order as to costs.

Sd/-

[ K. K. SONAWANE ] JUDGE

20. At this stage after pronouncement of Judgment, learned

counsel for appellant prays for stay to the Judgment and Order

passed by this Court to facilitate the appellant to approach to the

Appellate Forum for redressal of his grievance. Learned counsel

for respondents opposed for the same.

18 FA-3930-16-J-I

21. The matter is pending for compensation since year 2013.

The learned Commissioner has applied his mind. This is an

appeal under Section 30 of the Workmen's Compensation Act for

adjudication of substantial question of law raised in this appeal.

Therefore, I am not inclined to give respite to the Judgment and

Order of this Court. Hence, request for stay is hereby turned

down and refused.

Sd/-

[ K. K. SONAWANE ] JUDGE

mtk.

***