Madras High Court
Ravichandran vs Vgn Homes Pvt. Ltd on 19 February, 2021
C.M.A.No.1778 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.02.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.1778 of 2016
Ravichandran .. Appellant
Vs.
1.VGN Homes Pvt. Ltd.
No.333, Poonamallee High Road,
Aminjikarai Main Road, Chennai-29.
2.Babu
3.The National Insurance Co.,Ltd (T.P.Cell)
No.758, Anna Salai,
Chennai-600 002. .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
Workmen Compensation Act, praying to set aside the order dated 09.02.2016
passed in W.C.No.220 of 2013 by the Commissioner for Workmen's
Compensation -II, Deputy Commissioner for Labour -II, Chennai-6.
For Appellant : Mr.K.A.Balasubramanian
For Respondents :
For R1 & R2: No appearance
For R3 : Mr.D.Bhaskaran
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C.M.A.No.1778 of 2016
JUDGMENT
The appellant herein is the petitioner who filed W.C.No.220 of
2013, for the grievous injuries sustained by him all over his body, under the
employment with the 1st respondent through the contractor/ 2nd respondent as
a carpenter. Due to the accident happened on 23.09.2012, while he was doing
carpentry work in the 3rd floor of the VGN homes at Tiruverkadu. He was
immediately admitted in the Government hospital for treatment. Though, he
was under treatment merely for about 3 months, he has not completely
recovered. So he claim compensation from the respondents 1,2 and 3, before
the Commissioner of Labour.
2. All the three respondents were contested the case.
3. After full trial, Commissioner for Workmen's
Compensation -II, Deputy Commissioner for Labour -II, Chennai, fixed the
loss of earning capacity as 65 % and awarded compensation. But the
appellant / petitioner was not satisfied with the award passed by the
Commissioner of Labour, on the ground that due to the said accident he lost
his total earning capacity as 100 % but without considering the medical
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C.M.A.No.1778 of 2016
evidence, the Commissioner of Labour erroneously fixed 65 % as loss of
earning capacity and awarded less compensation. Aggrieved by the order, he
preferred this appeal.
4. The respondents also contested the appeal.
5. Point for consideration:
(i) whether the award passed by the Labour
Commissioner by fixing the loss of earning capacity is
65 % is sustainable one?
6. Facts of the case reveals that the appellant was working as
a carpenter under the 1st respondent engaged through his contractor / 2nd
respondent. In the construction place on 23.09.2012, while he was doing a
carpentry work, the wastage material like tiles, sand bags were turn out from
the 3rd floor by some other labours, it has fallen on the shoulder of the
appellant and thereby sustained grievous injuries all over the body and
fractures on his spinal cord. Immediately, he was admitted in the Government
hospital and nearly about 3 months he was taking treatment and he has also
underwent surgery. Inspite of that, he was not able to walk. The Doctor also
certified that due to the fracture sustained in the spinal cord 90 % of disability
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C.M.A.No.1778 of 2016
and he was permanently disabled to do his work as he did before. Hence, his
loss of earning capacity is considered as 100 % disability. But without
considering this aspect, the Labour Commissioner fixed 65 %, which is an
unsustainable one. So he prayed to fix the loss of earning capacity to 100 %
and to award the compensation accordingly.
7. To support his case, the appellant / petitioner relied on the
documents which were marked as Exs.P.1 to Ex.P.11 and he was examined as
P.W.1 and the Doctors were examined as P.W.2 and P.W.3 and on the side of
the respondents, one Arulmozhi was examined as R.W.1, before the Labour
Commissioner.
8. The counsel for the 3rd respondent submitted that there
was no employer and employee relationship between the 1st respondent and
the insurer and there was no policy coverage at the time of the accident,
hence he is not liable to pay the compensation as directed by the Labour
Commissioner. So he prayed to dismiss the appeal.
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C.M.A.No.1778 of 2016
9. On perusal of the evidence, witnesses were examined on
the side of the respondents/ insurance Company as R.W.1 and admits that for
carpenter also, there was a policy coverage taken by the 1st respondent/VGM
Homes Pvt. Ltd., Admittedly the 2nd respondent is a contractor who engaged
carpenter and labours to the 1st respondent's Company for its construction
project and this fact also not been denied by the 1st respondent. Hence, it is
prima facie established that through contractor / the 2nd respondent, the
injured was engaged as a carpenter under the 1st respondent for its
construction project. So the employer and employee relationship between
himself and the 1st respondent was proved. Besides there was a policy
coverage for carpenter. Hence the Labour Commissioner in his order, has
rightly awarded the compensation and directed the 3rd respondent to pay the
award amount with interest through the 1st respondent by the insurance
Company.
10. According to the appellant, the Doctor in his certificate
has certified 90% as his loss of disability, owing to injuries sustained in the
accident. It is admitted fact that while he was doing construction project
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C.M.A.No.1778 of 2016
waste tiles and sand bags were thrown on him accidently from the 3rd floor
and he sustained grievous injuries, for which he had underwent treatment
nearly for about two months in the Government Hospital. Even after
discharge from the hospital, he has not able to move his hands, legs and neck
due to the injuries sustained in that accident.
11. Accordingly, the Doctor certified totally 90 % as his
disability the nature of the injuries sustained by him reveals that he was not
able to do the carpentry work as he did before. So, the loss of earning
capacity ought to have been fixed at 100%, but without considering this
aspect the Trial Court erroneously fixed 65 %, which is an unsustainable one.
12. Considering the facts of the case, this Court accordingly
fixes the loss of earning capacity as 100%. However, as regard to the finding
under other heads of compensation this Court does not warrant any
interference. The Compensation enhance as follows:
60 x 100 x 189.56 x 8000 = 9,09,888/-
100 100
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C.M.A.No.1778 of 2016
13. In the result, this Civil Miscellaneous Appeal is allowed and
the 3rd respondents is directed to deposit the award amount of Rs.9,09,888/-
as awarded by this Court, together with interest at the rate of 12 % per annum
after 30 days from the date of accident till the date of realisation, within a
period of four weeks from the date of receipt of a copy of the judgment. No
Costs.
19.02.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.1778 of 2016
T.V.THAMILSELVI,J.
rri
C.M.A.No.1778 of 2016
.
19.02.2021
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