Madras High Court
The Divisional Manager vs Periasamy on 3 December, 2021
C.M.A.(MD) No.1441 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
C.M.A(MD)No.1441 of 2008
and
M.P(MD)No.1 of 2009
The Divisional Manager
United India Insurance Company Limited,
Divisional Office – III,
Seethalakshmi Complex,
Thirunagar,
Madurai. ... Appellant / 2nd Respondent
Vs.
1.Periasamy
2.Karuppayee,
3.Senthi
4.Shanti ... Respondents 1 to 4 /
Petitioners 1 to 4
5.A.Selvaraj ... 5th Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of the
Workmen's Compensation Act, against the order passed in W.C.No.63 of
2004, dated 27.06.2008, on the file of the Deputy Commissioner of
Workmen's Compensation, Madurai.
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.1441 of 2008
For Appellant : Mr.C.Jawahar Ravindran
For Respondents : Mr.K.S.Duraipandian
(R2 & R4)
For Respondent-1 : Died
For Respondent-5 : No Appearance
JUDGMENT
The Civil Miscellaneous Appeal is filed by the Insurance
Company, challenging the order passed in W.C.No.63 of 2004, dated
27.06.2008, on the file of the Deputy Commissioner of Workmen's
Compensation, Madurai.
2. The facts giving rise to the present appeal are that the
deceased Balamurugan was working as a 'Loadman' under one Selvaraj,
the 5th respondent herein. On 08.09.2003, at about 8.45 a.m., while the
deceased was travelling as a 'Loadman' from Erukkalai Vellore to
Pudupatti, the vehicle viz., Lorry, bearing Registration No.TCU 1269,
driven by its driver Thiagarajan, dashed against the electric post and due
to which, the deceased was electrolyzed. Immediately, the deceased was
taken to Madurai Government Rajaji Hospital and on the way to hospital,
he died.
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C.M.A.(MD) No.1441 of 2008
3. The respondents 1 to 4 herein, who are father, mother and
unmarried sisters, filed a claim petition, in W.C.No.63 of 2004, before the
learned Deputy Commissioner of Workmen's Compensation, Madurai,
claiming a sum of Rs.4,47,008/-, as compensation, for the death of the
deceased Balamurugan.
4. Resisting the claim petition, the Insurance Company has filed
a counter affidavit stating that the deceased travelled as a gratuitous
passenger in a goods vehicle and he was one among the member of
marriage group. The deceased was aged 14 years, at the time of accident
and that a person, aged 14 years, cannot be employed. The Authority has
erroneously comes to the conclusion that the deceased was a coolie and
granted compensation.
5. To substantiate the case, the 1st petitioner examined himself
as P.W.1 and on the side of the petitioner 6 documents were marked as
Ex.P1 to Ex.P6. On the side of the 2nd respondent / appellant Insurance
Company, 2 witnesses were examined as D.W.1 and D.W.2 and 2 documents
were marked as Ex.B1 and Ex.B2.
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C.M.A.(MD) No.1441 of 2008
6. The Deputy Commissioner of Workmen's Compensation,
Madurai, upon considering the oral and documentary evidence has
awarded a sum of Rs.3,35,597/-, as compensation and directed the 2nd
respondent / appellant Insurance to pay the compensation, within a period
of 30 days from the date of receipt of a copy of the order, failing which,
directed to pay award the amount with interest at the rate of 12% p.a.,
from the date of accident till the date of deposit.
7. Aggrieved over the same, the appellant Insurance Company
has preferred the present Civil Miscellaneous Appeal.
8. The learned counsel appearing for the appellant Insurance
Company would submit that the deceased was a gratuitous passenger in a
goods vehicle and he was one among the member of the marriage group,
travelled in the vehicle. The deceased was aged 14 years, at the time of
accident and that a person, aged 14 years, cannot be employed. The
Authority has erroneously comes to the conclusion that the deceased was a
coolie and granted compensation. Hence, the learned counsel prayed for
setting aside the order passed by the learned Deputy Commissioner of
Workmen's Compensation, Madurai.
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C.M.A.(MD) No.1441 of 2008
9. The learned counsel appearing for the claimants would
submit that the victim was a coolie, employed by one Selvaraj, the
deceased was travelling as a coolie along with marriage party. Even
assuming that the deceased was a relative, his services has been engaged
only as a coolie to load and unload the marriage articles in the vehicle. The
compensation awarded by the Authority was perfectly in order. He further
stated that the policy for the vehicle was valid one and the compensation
has got to be paid by the Insurance Company, which has rightly been
granted. Hence, prayed for dismissal of the appeal.
10. I have heard the learned counsels appearing on either side
and perused the materials on record.
11. The factum of accident and the death is not in dispute. The
Authority has taken note of the minimum wages applicable to a coolie, as
there was no proof of wage produced by the claimants and applying the
factors applicable to a person aged 16 years, has granted the
compensation. Though the contention of the Insurance Company appears
sound logic, that the person aged below 18 cannot be employed under the
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C.M.A.(MD) No.1441 of 2008
Labour Enactment, even an adolescent can be employed and the
employment of child alone is prohibited and the adolescent is defined as a
person aged between 14 and 18. The various Labour enactments also have
specifically restricted the working hours to 6 instead of 8 hours, as has
been meant for the regular employees. Since the Authority has taken note
of the minimum wages as Rs.2915/- per month, which is applicable for an
employee, who is working 8 hrs a day, payable for 30 days in a month. The
wage per day for a regular employee comes to Rs.97.16 and for one hour
Rs.12.145 and if it is calculated for 6 hours, it comes to Rs.72.87 and for 30
days, it comes to Rs.2186/-.
12. Taking note of the fact that the authority has rightly came
to the conclusion and fastened the liability on the Insurance Company.
With regard to the Award of compensation, for a minor, who can be
allowed to work only for 6 hrs., a day, the wages is fixed as Rs.2186/-, per
month and therefore, this Court modifies the Award to Rs.2,49,882.78 ( Rs.
72.87 x 30) and rounded off to Rs.2,50,000/- from Rs.3,33,097/-.
13. In the result, the Civil Miscellaneous Appeal is partly
allowed. The amount awarded by the Deputy Commissioner of Workmen's
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C.M.A.(MD) No.1441 of 2008
Compensation, Madurai, is modified to Rs.2,50,000/- from Rs.3,33,097/-.
The appellant Insurance Company is directed to deposit the award amount,
now fixed by this Court, if not already deposited. On such deposit, the
claimants are permitted to withdraw the deposited amount with accrued
interest and costs. The appellant Insurance Company is permitted to
withdraw the excess amount with accrued interest, if already deposited the
entire award amount. After conducting the dependant enquiry, as
expeditiously as possible, the Authority is expected to disburse the amount
to the claimants, within a period of 90 days from the date of receipt of a
copy of this order. No costs. Consequently, the connected miscellaneous
petition is closed.
03.12.2021
Index : Yes / No
Internet : Yes / No
MPK
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.1441 of 2008
To
1. The Deputy Commissioner of Workmen's Compensation,
Madurai.
2. The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) No.1441 of 2008
S.VAIDYANATHAN, J.
MPK
JUDGMENT MADE IN
C.M.A(MD)No.1441 of 2008
03.12.2021
https://www.mhc.tn.gov.in/judis
