Madras High Court

Prakash vs S.Dhanasekar on 18 January, 2021

                                                                             C.M.A.No.3120 of 2013

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 18.01.2021

                                                          CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 C.M.A.No.3120 of 2013

                     Prakash                                                     ..Appellant

                                                            Vs.

                     1.S.Dhanasekar

                     2.Iffco-Tokio General Insurance Co Ltd.,
                       Tulsi Complex, 3rd Floor,
                       195-TV Swamy Road (west),
                       R.S.Puram, Coimbatore 641 002.
                                                                        ..Respondents
                     Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
                     Workmen's Compensation Act, 1923, to set aside the order made in
                     W.C.No.271 of 2009 on the file of the Workmen's Compensation
                     Commissioner cum Deputy Commissioner of Labour, Salem dated
                     21.06.2013 which was served on the appellant herein on 11.07.2013.

                                     For Appellant     : Mr.C.Kulanthaivel

                                     For Respondents : Mr.M.B.Raghavan for R2
                                                     : Service awaited for R1




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https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.3120 of 2013

                                                   JUDGMENT

The award dated 21.06.2013 passed in W.C.No.271 of 2009 is

under challenge in the present civil miscellaneous appeal.

2. The claim petition filed by the appellant under the Workmen

Compensation Act is rejected mainly on the ground that the appellant

has not established the employee employer relationship. At the time of

the accident, admittedly the appellant sustained injury while repairing

the tyre in lorry bearing Registration No.KA-22B-5212. The owner of

the lorry is the first respondent one S.Dhanasekar. However, during the

trial, the appellant has not established that the first respondent

Dhanasekar is the employer and liable to pay compensation under the

Workmen Compensation Act. In view of the fact that the employee

employer relationship was not established by the claimant, the Deputy

Commissioner of Labour rejected the claim petition.

3. The learned counsel for the appellant mainly contented as per

the definition enumerated in Section 2 (e) of the Workmen

compensation Act which reads as follows:

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013

““employer” includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him.” Relying on the said provision, the learned counsel for the appellant

reiterated that the factum regarding the accident was established and

admittedly, the appellant was preparing lorry tyre during the accident.

Further, he has impleaded the owner of the lorry, the first respondent as

a party to the claim petition. These facts are sufficient to grant

compensation as the Workmen Compensation Act is a welfare

legislation. Thus, the Deputy Commissioner of Labour committed an

error in not considering the claim petition.

4. Per contra, the learned counsel for the second respondent

disputed the said contention by stating that the Insurance Company is

liable to settle the claims in accordance with the terms and conditions of

the insurance policy. The driver is covered under the policy. Admittedly,

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013

the vehicle involved in the accident is having valid policy during the

relevant period of time. However, during the cross examination itself,

the claimant categorically deposed that he was not knowing the first

respondent Dhanasekar and he has not receiving salary from Dhanasekar

and his employer was one Prakash. The entire deposition during the

cross examination reveals that the first respondent Dhanasekar is not an

employer of the claimant. Therefore, the Deputy Commissioner of

Labour rightly rejected the claim petition, there is no error as it is.

5. This Court is of the considered opinion that in the claim

petition, the appellant has clearly stated that the first opposite party

Dhanasekar is the owner of the lorry bearing Registration No.KA-22B-

5212. The said lorry was insured in the second opposite party viz., Iffco-

Tokio General Insurance Company Limited. More importantly, in

paragraph 5 of the claim petition, the appellant has clearly stated he was

working with the first opposite party as Driver and receiving a monthly

salary of Rs.6,000/- and Rs.100/- per day as daily batta. Then the

claimant himself has categorically filed a statement that the first

respondent Dhanasekar is the owner of the lorry and he was employed

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013

by Dhanasekar and was receiving salary from him. Then, he is bound to

establish the same before the Trial Court.

6. Contrary to the said statement in the claim petition, the

appellant has deposed during the cross examination as extracted

hereunder:

"kDjhuh; (k/rh/1) ,uz;lhk; vjph;kDjhuh;

                               jug;g[         FWf;F              tprhuizapy;.                   @ehd;
                               vGjpf;bfhLj;jjhf                   vg;/I/Mh;?y;             cs;sjpy;
                               r';ffphp.      br';fh         Kdpag;gd;nfhtpiy                nrh;e;j
                               gpufhc&;       vd;gthpd;          og;gh;      yhhpapy;         ntiy

bra;jjhf Fwpg;gplg;gl;Ls;sJ vd;why; rhp/ vdJ bgaUk; gpufhc&; vdJ Kjyhsp bgaUk; gpufhc&; vd;why; rhp/ vdJ Kjyhsp gpufhRf;F ghh;l;dh;

gHdpr;rhkp vd;gth; cs;shh;/ vg;/I/Mh;?d; go me;j gHdpr;rhkpf;F og;gh; yhhp nf/V/22gp 5212 brhe;jkhdJ vd;why; vg;/I/Mh;?go rhp/ vg;/I/Mh;?y; ,e;j tz;o jdnrfUf;F brhe;jkhdJ vd;W v';Fk; Fwpg;gpltpy;iy vd;why; rhp/ jdnrfiu ehd; ghh;j;jjpy;iy/ jdnrfUila tpyhrk; vdf;F bjhpahJ/ vdf;F rk;gsk; bfhLj;J te;jJ gpufhc&; jhd;/ gpufhrplk; jhd; tpgj;Jf;F 2 khj';fSf;F Kd;g[ oiutuhf nrh;e;njd;;/ tpgj;J ele;j

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3120 of 2013

,lj;jpy; gpufhc&; ,y;iy/ tpgj;J ele;j md;W ehd; vd;d ntiy bra;njd; vd;W gpufhRf;F bjhpahJ vd;why; rhpay;y/ mth;jhd; laiu jpUg;gpg;nghlr;brhy;yp vd;dplk; brhd;dhh;/ laiu jpUg;gpg;nghlr;brhy;yp gHdpr;rhkp brhy;ytpy;iy/ mth; tpgj;J ele;j ,lj;jpw;F tutpy;iy/ mUs; vd;gth; gpufhrplk; ntiy bra;jhh;/ mUs; c&pg;L oiuth;/ tHf;fpw;fhd Mtz';fis v';F nrfhpj;njhk; vd;gJ ehd;

                               kUj;Jtkidapy;                    ,Ue;jjhy;               vdf;F
                               bjhpatpy;iy/              tHf;fpw;fhd             tptu';fis

tHf;fwp"h; nrfhpj;jhh;/ ,d;Nud;!; ghyprpapd;go jdnrfud; vd;gth; jhd; yhhpapd; chpikahsh; vd;why; rhp/ jdnrfUila tpyhrk; bg';fS:h; vd;why; rhp/ gpufhira[k;. gHdpr;rhkpiaa[k; ehd; ,e;j tHf;fpy; vjphpahf nrh;f;ftpy;iy vd;why;. ehd; gpufhc&;. jdnrfh;. gHdpr;rhkp vd;gthplk; nfhUfpnwd;/ ,e;j tHf;fpy; gpufhira[k;.

                               gHdpr;rhkpiaa[k;                 vjph;             jug;gpduhf
                               nrh;f;ftpy;iy       vd;why;      rhp/    tz;o     chpikahsh;
                               jdnrfhplk;         ehd;      ve;j       fhyj;jpYk;       ntiy
                               bra;atpy;iy         vd;why;      rhpay;y/       nf/V/22gp/5212
                               vd;w      yhhpf;Fk;       Kjy;       jfty;        mwpf;ifapy;
                               brhy;yg;gl;Ls;s       gpufhRf;Fk;        vt;tpj    rk;ge;jKk;
                               ,y;iy       vd;why;       rhpay;y/      tpgj;J     ele;j       17
                               ehl;fs;    fHpj;J      kw;wth;fSld;        fye;jhnyhrpj;J



https://www.mhc.tn.gov.in/judis/
                                                                                 C.M.A.No.3120 of 2013

                               nf/V/22gp/   5212    thfdj;ij         ,e;j      rk;gtj;Jld;
                               bjhlh;g[gLj;jp       vg;/I/Mh;/      bfhLf;fg;gl;Ls;sJ
                               vd;why;      rhpay;y/      vd;id        kUj;Jtkidapy;
                               nrh;j;jJ     mUs;.      gpufhc&;    kw;bwhUth;     tpgj;jpy;
                               mogl;lJ      gw;wp   gHdpr;rhkpf;F       jfty;         bjhpa[k;/

2k; vjph; kDjhuiu ,e;j tHf;fpy; rpf;fitf;f ntz;Lbkd;w nehf;fj;jpy; ,e;j tz;oia tHf;fpy; nrh;j;J ehd;. gpufhc&;. gHdpr;rhkp Mfpnahh; eltof;if vLj;Js;nshk; vd;why; rhpay;y/ gpufhRf;fhfnth. gHdpr;rhkpf;fhfnth ,e;j 2k; vjph;kDjhuh; ve;j el;l<Lk; bfhLf;f flikg;gl;ltuy;y vd;why; rhpay;y/@ ? vd;W bjhptpj;Js;shh;/”

7. A perusal of the deposition of the appellant in the cross

examination itself crystal clear that the statement made in the claim

petition was not established during the cross of the trial and more

specifically, the appellant is unable to establish that he was employed by

the first respondent Dhanasekar and salary was being paid by the first

respondent to the appellant. In the absence of any evidence to establish

the same, the Deputy Commissioner of Labour has rightly rejected the

application and there is no infirmity or perversity as such.

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8. This being the factum, this Court is not inclined to consider the

appeal. Accordingly, the award passed by the Deputy Commissioner of

Labour in W.C.No.271 of 2009 stands confirmed and C.M.A.No.3120 of