Madras High Court
United India Insurance Co. vs Elamathi on 25 February, 2021
C.M.A. No. 1151 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No. 1151 of 2020
& C.M.P.No. 7265 of 2020
United India Insurance Co., Ltd.,
Sreeji Chambers, Mount Road,
Coonoor, Nilgris District. ..Appellant
Vs
1.Elamathi
2.Minor Giri
3.Minor Gokul
(Minors 2 and 3 represented by natural guardian Elamathi)
4.Saroja
5.Management of M/s.Alpha Electricals,
No.34B, Senthil Nilayam,
Darlington Bridge, Coonoor,
Nilgris District.
6.Anil Laxmichand Shah
7.Kiran Anil Shah ..Respondents
Prayer : Appeal filed under Section 30 of Workmen Compensation
Act, 1923 against the award and decree dated 18.09.2017 made in
W.C.No. 75 of 2017 on the file of the Commissioner, Workmen
Compensation Tribunal, DCL, Coonoor.
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Page 1 of 13
C.M.A. No. 1151 of 2020
For Appellant : Mr.S.Arun Kumar
For Respondents : Mr.P.Valliappan for R1 to R4
No appearance for R5 to R7
JUDGMENT
The United Insurance Company Limited is the appellant and
the appeal is preferred against the judgment dated 18.09.2017
passed in WC No.75 of 2017.
2. The substantial question of law raised by the appellant are
as under:
“(1) Whether the Deputy Commissioner of
Labour can award compensation to person not
coming under the purview of Workman as
defined under Section 2(n) of the Act and
accident not occuring during the course of
employment as far as appellant herein is
concerned?
(2) Whether the Authority has jurisdiction
to entertain the above claim as far as the
appellant herein is concerned?
(3) Whether the Deputy Commissioner of
Labour was correct in holding that the appellant
is liable inspite of the fact that the policy was
unenforceable in respect of the said risk for the
manner and place of accident?
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C.M.A. No. 1151 of 2020
(4) Whether the Deputy Commissioner of
Labour was correct in directing the appellant to
pay the compensation contrary to the Trade
category agreed between the insured and
insurance company?”
3. The learned counsel appearing on behalf of the appellant
mainly contended that fixing the liability on the appellant/insurance
company is admittedly in violation of the policy conditions. As per
the policy, there is no coverage for the claimant/workman. In the
present case, what is covered is for the skilled employees and it was
not established that the person died was performing the skilled job
in the accident spot. Relying on the said factual situation, the
learned counsel appearing for the appellant reiterated that the
Deputy Commissioner of Labour erroneously proceeded on the basis
that the deceased was a skilled workman. Per contra, he was one
of the labourers engaged to dig a pit in the nearby site by a sub-
contractor, namely, one Murugesan and those facts were
suppressed in the application and the Deputy Commissioner of
Labour also proceeded on the footing that he was performing the
skilled job as stated in the policy. Therefore, the employer and the
employee in this case colluded with each other and filed an
application by suppressing the facts to get the compensation from
the appellant/insurance company. It is evidently clear that the said
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C.M.A. No. 1151 of 2020
sub-contractor - Murugesan was not brought into the picture at all.
He was not added as a party in the claim petition. Therefore, there
are many contradictions in respect of the sub-contractor –
Murugesan and the FIR speaks that the sub-contractor Murugesan is
responsible for the accident. However, in the claim petition, there is
no mentioning about the sub-contractor - Murugesan. Thus, the
factual contradiction reveals that in order to fix the liability on the
appellant/insurance company, the claimants as well as the employer
together twisted the facts and filed the claim petition.
4. Learned counsel appearing on behalf of the respondents 1
and 4/claimants opposed the contention by stating that the
deceased worker was employed as workman and he was performing
the skilled job. The factum regarding the accident was established
and the FIR was filed and the death occurred during the course of
the employment and the employer-employee relationship also
established. This being the factum, the Deputy Commissioner of
Labour has rightly considered the facts and circumstances and
awarded the compensation by fixing the liability on the
appellant/insurance company. Thus, the appeal deserves to be
dismissed.
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C.M.A. No. 1151 of 2020
5. Considering the arguments, this Court is of the considered
opinion that in the claim petition, the claimants have not spelt out
anything about the sub-contractor - Murugesan. Contrarily, the
claim petition was filed merely by stating that the deceased was
performing the industrial work and, more specifically, the skilled
work as stated in the insurance policy. Therefore, the contention of
the appellant in this regard is to be considered whether the claim
petition is filed stating that the deceased was doing the skilled work
only for the purpose of claiming compensation from the insurance
company based on the policy or not. In this regard, it is relevant to
consider the FIR which was filed by the Inspector of Police, Upper
Coonoor Police Station. The FIR reveals that the details of
known/suspected/unknown accused with full particulars ( KUnfrd;
(rg; fhz;lu; hf;lh;) kw;Wk; tpgj;J elf;f fhuzkhapUe;jth;fs;).
Therefore, there is specific mentioning of the name of
Murugesan/sub- contractor in the FIR. The complainant/Perumal,
who was working with the deceased persons also belongs to the
same village of the deceased/claimants. Thus, Perumal, who was
an eye witness to the incident and gave information to the Police
and the Inspector of Police, registered the case in Crime No. 323 of
2016, dated 22.12.2016. Therefore, the facts narrated in the FIR
are certainly relevant for the purpose of understanding the facts
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C.M.A. No. 1151 of 2020
with reference to the facts stated in the claim petition. Thus, this
Court inclined to extract the FIR, which reads as under:-
rkh;g;gpf;fg;gLfpwJ/ fdk; Fw;wtpay; ePjpj;Jiw
eLth; mth;fs; Fd;D}h; ,d;W 22/10/2016k;
njjp 11/30kzpf;F nky; Fd;D}h; fhty;
epiya Ma;thsuhfpa ehd; epiya mYtypy;
,Uf;Fk;nghJ bgUkhs; vd;gth; epiyak;
M$uhfp bfhLj;j vGj;J Kykhd g[fhhpd;
tptuk; gpd;tUkhW Fd;D}h; 22/12/16 mDg;ge
[ h;.
bgUkhs; (40) S/o.mz;zhkiy. FHpkej;jk;.
mUh; jhYf;fh. jUkg[hp khtl;lk;. 9943462957
bgWeh;/ fhty; Ma;thsh; mth;fs;. nky;
Fd;D}h; fhty;epiyak;. Fd;D}h;/ Iah. ehd;
fle;j 10 ehl;fs; Kd;g[ v';fs; Chpy; ,Ue;J
Fd;D}h; bgl;nghh;oy; cs;s My;gh fk;bgdpf;F
jpd Typ ntiyf;fhf te;njd;/ mjw;F
Kd;dhy; v';fs; Ciu nrh;e;j gpujhg; (20).
MWKfk; (50). fhh;j;jpf; (35). fhkuh$; (40).
b$dfd; kw;Wk; rpyUk; nky; Fd;D}h; fhty;
epiyaj;jpw;F nky; gf;fKs;s My;gh
fk;bgdpf;F brhe;jkhd ,lj;jpy; j';fp My;gh
fk;bgdpf;F brhe;jkhd nky; fud;rp (rypoa{l;)
vd;w ,lj;jpy; fhiyapy; brd;W khiy tiu
m';F ntiy bra;Jk; Kd;W ntisa[k;
m';nfna rikj;J rhg;gpl;L tpl;L ,ut[
j';Ftjw;F kl;Lk; ,e;j ,lj;jpw;F te;J
j';Fnthk;/ ,d;W 22/12/2016 k; njjp tHf;fk;
nghy; fhiy 08/30 kzpf;F irl;Lf;F brd;W
ntiy bra;Jf;bfhz;oUe;njhk;/ eh';fs; My;gh
fk;bgdpia nrh;e;j KUnfrd; vd;gthpd;
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C.M.A. No. 1151 of 2020
bghWg;gpy; jhd; ntiy bra;J tUfpnwhk;.
eh';fs; ntiy bra;j ,lj;jpy; Rkhh; 20
mof;F nky; kz; jpl;il njhz;o m!;jpthuk;
nghl FHp vLj;Jf;bfhz;oUe;j nghJ
cs;gf;fk; FHpf;Fs; gpujhg; fhh;j;jpf; MWKfk;
fhkuh$; Mfpnahh; FHpf;Fs; ,Ue;j kz;iz
vLj;J btspapy; ,Ue;j b$dfd; trk;
bfhLj;Jf; bfhz;oUe;jhh;fs;. fhiy Rkhh;
10/00 kzp mstpy; nky; gf;fk; kz; ,oe;J
cs;ns ,Ue;jth;fis kz; nghl;L mKf;fp
tpl;lJ. nkny ,Ue;j b$dfd; mnj
kz;zpy; khl;of;bfhz;lhh;/ eh';fs;
m';fpUe;jth;fs; cjtpa[ld; b$dfid
fhg;ghw;wp xU nghf;F tz;oapy; Vw;wp Fd;Dhh;
GH f;F mDg;gp itj;njhk;. gpwF FHpf;Fs;
khl;of;bfhz;lth;fis m';fpUe;j bghJ kf;fs;
jPaizg;g[ Jiwapdh; kw;Wk; fhty; Jiwapdh;
cjtpa[ld; kz;Zf;Fs; khl;of;bfhz;oUe;j
ehy;tiua[k; kz;iz vLj;J mtu;fis nkny
vLj;J ghh;fF
; k; nghJ me;j ehy;tUk; ,we;J
ngha; ,Ue;jhh;fs;. nkYk; nkw;go My;gh
fk;bgdpfhuh;fs; nkw;go 20 mo cauKs;s kz;
jpl;il ve;jtpjkhd ghJfhg;g[k; bra;ahkYk;
ftdk; Fiwthf v';fis ntiy bra;a tpl;L
,e;j tpgj;J Vw;gl;L nkw;go ehy;tUk;
,we;Jtpl;lhh;fs;. fhak;gl;l b$dfd; Fd;Dhh;
muR kUj;jtkidapy; ,Ue;J nky;
rpfpr;irf;fhf nfhit muR kUj;Jtkidf;F
mDg;gptpl;lhh;fs;. Vdnt jh';fs; ,J
rk;ge;jkhf tprhhpj;J jf;f eltof;if
vLf;Fk;go nfl;Lf;bfhs;fpnwd;/ ,g;gof;F Sd
(bgUkhs; 22/12/2016) vd;W bfhLj;j g[fhhpid
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C.M.A. No. 1151 of 2020
bgw;W nky; Fd;Dhh; fhty; epiya Fw;w vz;
323-2016 gphpt[ 338. 304V. ,jr (4 death )
tpy; tHf;F gjpt[ bra;Jk; Kjy; jfty;
mwpf;ifapd; mriy fdk; JM mth;fSf;F
mDg;gpa[k; ,ju efy;fis rk;ge;jg;gl;l cah;
mjpfhhpfSf;F mDg;gpa[k; xU efiy g[yd;
tprhuizf;fhf Fd;Dhh; fhty; Jiz
fz;fhzpg;ghsu; mth;fspd; ghh;itf;F
itf;fg;gl;lJ/
6. The policy admittedly was in force. However, the details of
the coverage stipulates only skilled employees and the deceased
being the unskilled workman, there is no coverage under the policy.
The policy coverage stipulates as under:
Details of Employees Covered:
Description of Worker Type Declared Declared Declared Place/places of Trade category Sub trade
Employees number of monthly wages during employment category
employees wage/employe the period of
e insurance
1 Skilled 1 10,700 1,28,400 Electric Commercial
refrigerators purpose
and air
conditioners
assembling
installation
maintenance
and repairs
1 Skilled 1 10,700 1,28,400 Plumber Retail ishop
hotwater and risk
sanitary
engineers
where carried
on as separate
trade
1 Skilled 1 10,700 1,28,400 Carvers in On others
stone, masons
and
monumental
masons where
carried on as a
separate trade
1 Skilled 1 10,700 1,28,400 Welders where Welder where
carried on as a carried on as a
separate trade separate trade
1 Skilled 1 4,500 54,000 Carvers in On others
stone, masons
and
monumental
masons where
carried on as a
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C.M.A. No. 1151 of 2020
Description of Worker Type Declared Declared Declared Place/places of Trade category Sub trade
Employees number of monthly wages during employment category
employees wage/employe the period of
e insurance
separate trade
1 Skilled 1 10,500 1,26,000 Carpenters Woodworking
and joiners machinist
who only
undertake
contracts for
woodwork
1 Skilled 1 10,500 1,26,000 Paint colour Where red or
and ENAMAL white led
MFGRS manufactured
7. With reference to the FIR as well as the policy coverage,
the facts stated in the claim petition are to be considered. The claim
petition states that the deceased was a workman engaged for only
work and he was doing the skilled work. However, during the cross-
examination by the insurance company, Dinesh Nagarajan,
Administrative Manager, has stated that there was no sub-contract
in favour of one Murugesan. Regarding the investigation conducted
by the police, he stated that he has no knowledge. However, the
suggestion made that more than thirty labourers were working
under the sub-contract of Murugesan is also not accepted. Thus, it is
clear that there is no contradiction with reference to the facts and
circumstances spelt out by the complainant, who was a co-worker
as well as the management witness - Dinesh Nagarajan. The
statement of the management witness cannot be trusted upon in
view of the fact that the facts narrated in the FIR based on the
complaint given by the co-worker seems to be cogent and the name
of the sub-contractor - Murugesan was stated in column no.7 of the
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C.M.A. No. 1151 of 2020
FIR as suspected accused. The contention was that no safety
equipments were granted to these industrial labourers while digging
the pit and, therefore, the sub-contractor was stated as suspected
accused.
8. The Deputy Commissioner of Labour merely proceeded on
the basis of the claim petition as well as based on the statement
given by the fifth respondent/Management - Alpha Electricals. The
Deputy Commissioner of Labour has not gone into the details
regarding the FIR as well as the contentions in the claim petition
and the contradictions pointed out by the insurance company in this
regard. Importantly, soon after the accident, the fifth
respondent/Management has not informed the same to the
insurance company. It is required under Rule 2 to provide such
information to the insurance company enabling them to conduct
inspection. This being the Rule to be followed, the same also
admittedly has not been done. Therefore, this Court is bound to
draw the factual inference that the deceased employee is an
unskilled labourer engaged by the sub-contractor to perform certain
works in favour of the fifth respondent/Management of Alpha
Electricals, who was engaged by the principal employer, namely,
respondents 6 and 7. The factual inference is unavoidable in view of
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C.M.A. No. 1151 of 2020
the contradictions in the statement by the co-labourers and by the
management witnesses. However, the facts in the claim petition is
not co-relating with the facts regarding the occurrence spelt out by
the complainant before the police. Thus, this Court is not inclined to
appreciate the findings of the Deputy Commissioner of Labour.
However, the claimants are entitled for compensation under the
statute. The factum regarding the accident was established. The
employer-employee relationship was also established. The accident
occurred during the course of the employment. Thus, the right of
compensation under the statute cannot be denied to the claimants,
and therefore, this Court is of the opinion that the liability is to be
shifted from the appellant insurance company to the employers. In
the present case, respondents 6 and 7 are the principal employers
and the fifth respondent is the company who was engaged by the
principal employers and the fifth respondent further engaged the
work to the sub-contractor - Murugesan to perform certain works by
the deceased workers. Thus, respondents 5 to 7 are jointly liable to
pay compensation to the claimants/respondents 1 to 4.
Accordingly, respondents 5 to 7 are directed to deposit the
awarded compensation with accrued interest within a period of
twelve weeks from the date of receipt of a copy of this judgement
and on such deposit, respondents 1 to 4/claimants are permitted to
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C.M.A. No. 1151 of 2020
withdraw the awarded amount by filing an appropriate application
and the payments are to be made through RTGS.
9. Accordingly, the award dated 18.09.2017 passed in
W.C.No. 75 of 2017 is set aside as far as the appellant/United
Insurance Company is concerned and the C.M.A.No. 1151 of 2020
stands allowed. No costs. Consequently, the connected
miscellaneous petition is closed.
10. The appellant/insurance company is permitted to withdraw
the deposited amount with accrued interest by filing an appropriate
application before the authority concerned.
25.02.2021
Index: Yes
ssm
To
The Commissioner,
Workmen Compensation Tribunal,
DCL, Coonoor.
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C.M.A. No. 1151 of 2020
S.M.SUBRAMANIAM, J.
(ssm)
C.M.A.No. 1151 of 2020
25.02.2021
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