United India Insurance Co. vs Elamathi
2021 Latest Caselaw 4969 Mad

                                                                      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

                      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

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C.M.A. No. 1151 of 2020

evidently clear that the said 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;l;uhf;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

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C.M.A. No. 1151 of 2020

are certainly relevant for the purpose of understanding the facts

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;g[eh;. 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;

bghWg;gpy; jhd; ntiy bra;J tUfpnwhk;. eh';fs; ntiy bra;j

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C.M.A. No. 1151 of 2020

,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;f;Fk; 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 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 http://www.judis.nic.in

C.M.A. No. 1151 of 2020

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 risk hotwater and 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 separate trade

1 Skilled 1 10,500 1,26,000 Carpenters and Woodworking joiners who machinist 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

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C.M.A. No. 1151 of 2020

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 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

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C.M.A. No. 1151 of 2020

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 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

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C.M.A. No. 1151 of 2020

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 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

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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.

S.M.SUBRAMANIAM, J.

(ssm)

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C.M.A.No. 1151 of 2020

25.02.2021

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