Madras High Court
The Divisional Manager vs Thirumathi Gnanaselvam on 27 January, 2021
C.M.A.No.115 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.115 of 2021
and
C.M.P.No.800 of 2021
The Divisional Manager,
The United India Insurance Co.Ltd.,
First Floor, T.K.M.Complex, No.46-51,
Katpadi Road, Vellore – 632 004. ..Appellant
Vs.
1.Thirumathi Gnanaselvam
2.Selvi Suriya
3.Minor Priya, rep.by her
mother Thirumathi Gnanaselvam
4.Thirumathi J.Lathapriya ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 30 of
Workmen's Compensation Act, against the order dated 3.8.2012 made in
W.C.No.383 of 2006 on the file of the Court of Commissioner for
Workmen's Compensation (Deputy Commissioner of Labour-I) at
Vellore.
For Appellant : Mr.M.Krishnamoorthy
JUDGMENT
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C.M.A.No.115 of 2021
The Award dated 03.08.2012 passed in W.C.No.383 of 2006 is
under challenge in the present Civil Miscellaneous Appeal.
2. The learned counsel appearing on behalf of the appellant
mainly contended that the appellant company is not liable to pay
compensation. The Substantial Question of law raised in the appeal on
hand is that the insurer is not expected to cover the risk of the person
and therefore, there is no coverage and accordingly, the appeal is to be
allowed.
3. The respondent filed an application, seeking compensation
under the Workmen Compensation Act on the ground that on 28.7.2006
at 08.45 p.m, the deceased was travelling as a Cleaner-cum-loadmen in
the vehicle, which met with an accident bearing Registration No.TN-23-
AB-1812 and the said vehicle was loaded with machine parts. When the
vehicle was moving on Vellore to Chennai Road, the vehicle met with
an accident and the deceased fell down along with the iron load,
sustained fatal injuries and died on the spot.
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C.M.A.No.115 of 2021
4. The 1st respondent is the widow and the respondents 2 and 3 are
the children of the deceased. The Deputy Commissioner of Labour
adjudicated the issues with reference to the documents and evidences
produced by the respective parties. The factum regarding the accident
was established. The deceased was working at the time of accident and
therefore, the accident occurred during the course of employment. When
all these factors were established, the Deputy Commissioner of Labour
passed an award, granting a compensation of Rs.4,17,918/- along with
the interest at the rate of 12% per annum.
5. The learned counsel for the appellant contended that the
appellant is not liable to pay compensation as the deceased was
travelling as a loadmen and was sitting in the rear side and in the
particular vehicle, the seating capacity was provided only for driver.
Thus, the Deputy Commissioner of Labour has not considered Ex.P4/
the copy of the policy, where there is no cover for the deceased
loadmen.
6. This Court is of the considered opinion that with reference to
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C.M.A.No.115 of 2021
the liability, the plea must be taken before the trial Court. In the present
case, the defense has not taken regarding the liability nor established
before the trial Court. In the absence of any pleadings in particular and
evidence, this Court cannot consider the said ground at the appeal stage
as it was not factually established. The trial Court arrived a conclusion
that the factum regarding the accident was established and the policy
was in force and the deceased died during the course of employment.
Thus, the liability was fixed on the appellant and this Court is of the
considered opinion that in the absence of any evidence or proof and a
finding with reference to such defense, this Court cannot consider the
ground raised in the present appeal and the question of law raised, is
also with reference to the facts and thus, the appeal deserves no merit
consideration.
7. Accordingly, the Award dated 03.08.2012 passed in
W.C.No.383 of 2006 stands confirmed and consequently, the Civil
Miscellaneous Appeal in C.M.A.No.115 of 2021 stands dismissed. The
respondents/claimants are permitted to withdraw the entire award
amount with accrued interest by filing an appropriate application and
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C.M.A.No.115 of 2021
the payments are to be made through RTGS. As far as the 3 rd respondent
minor is concerned, the portion of the compensation awarded in favour
of the minor is directed to be deposited in any one of the nationalised
Bank in an interest bearing deposit scheme till the minor attains the age
of majority. No costs. Consequently, connected miscellaneous petition is
closed.
27.01.2021
kak
Index: Yes/No
To
1.The Court of Commissioner for Workmen's
Compensation (Deputy Commissioner of Labour-I)
Vellore.
2.The Sub-Assistant Registrar,
A.E.Section, High Court of Madras.
S.M.SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.115 of 2021
kak
C.M.A.No.115 of 2021
27.01.2021
https://www.mhc.tn.gov.in/judis/
