Madras High Court
M/S.National Insurance Co. vs Chandru .. 1St on 9 March, 2022
C.M.A(MD)Nos.1104 and 1105 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)Nos.1104 and 1105 of 2021
and
C.M.P(MD)Nos.10610 and 10611 of 2021
C.M.A(MD)No.1104 of 2021:
M/s.National Insurance Co., Ltd.,
through its Divisional Manager,
Sub Collector Office Road,
Kalaingar Malligai first floor,
Dindigul. .. Appellant / Third respondent
Vs.
1.Chandru .. 1st Respondent / Petitioner
2.Boominathan .. 2nd Respondent / 1st Respondent
3.Habeeb Rehman .. 2nd Respondent / 3rd Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the
Employees Compensation Act, against the award made in E.C.No.70 of
2018, dated 24.08.2021, and the same was amended on 22.09.2021, on
the file of the Deputy Commissioner of Labour Court (Commissioner of
Labour), Dindigul.
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C.M.A(MD)Nos.1104 and 1105 of 2021
C.M.A(MD)No.1105 of 2021:
M/s.National Insurance Co., Ltd.,
through its Divisional Manager,
Sub Collector Office Road,
Kalaingar Malligai first floor,
Dindigul. .. Appellant/Third respondent
Vs.
1.Thamarai Kannan .. 1st Respondent/Petitioner
2.Boominathan .. 2nd Respondent/1st Respondent
3.Habeeb Rehman .. 2nd Respondent/ 3rd Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the
Employees Compensation Act, against the award made in E.C.No.71 of
2018, dated 24.08.2021, and the same was amended on 22.09.2021, on
the file of the Deputy Commissioner of Labour Court (Commissioner of
Labour), Dindigul.
In both cases:
For Appellant : Mrs.P.Malini
For RR1 & 2 : Mr.P.R.Prithviraj
For R3 : No appearance
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C.M.A(MD)Nos.1104 and 1105 of 2021
COMMON JUDGMENT
These Civil Miscellaneous Appeals are directed against the award
made in E.C.Nos.70 and 71 of 2018, dated 24.08.2021, which were
amended on 22.09.2021, on the file of the Deputy Commissioner of
Labour, Dindigul.
2. The Insurance Company is the appellant in both the appeals and
the first respondent in both petitions are the petitioners in the claim
petitions. The third respondent is the registered owner of the vehilce. The
second respondent is the previous owner. However, premium was paid in
the name of the third respondent.
3. Heard the learned counsel for the appellant/Insurance Company,
the learned counsel for the first respondents/claimants and the learned
counsel for the second respondent/owner of the vehicle and perused the
the materials placed before this Court.
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C.M.A(MD)Nos.1104 and 1105 of 2021
4. The learned counsel for the appellant/insurance company could
contend that there is no employer-employee relationship between the first
respondents/claimants and the second respondent/owner of the vehicle
and there is no positive evidence to show the injury sustained by the
claimants/petitioners is scheduled injury as defined under Employees
Compensation Act.
5. Per contra, learned counsel for the first respondents/claim
petitioners could contend that Ex.P9 and Ex.C1 having been obtained
from the medical board, the Commissioner has rightly relied upon and
fixed the disability at 23%. After perusing the Ex.C1, I find that both the
locomotive disability as well as partial permanent disability by the doctor
has marked as NIL. However, he has also opined that the disability is
23%. In the absence of any positive evidence available in the record, I
find that in the interest of justice, an opportunity has to be given to the
claim petitioners to show and demonstrate the injury sustained by him in
the road transport accident is scheduled injury as defined under the
Employees Compensation Act.
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C.M.A(MD)Nos.1104 and 1105 of 2021
6. The claim petitioners are hereby permitted to adduce evidence to
show that the injury sustained by them has resulted in loss of earning
capacity so as to be compensated under the Employees Compensation
Act. The tribunal has held that merely because the claim petitioner in
CMA(MD).No.1104 of 20221 is the brother of the owner of the vehicle,
that does not itself give raise to presumption that there is no employer-
employee relationship and relied upon the decision of the Karnataka
High Court reported in 2006 ACJ 850. Accordingly, the prime point as to
whether the maintainability of compensation petition before the
Workmen Compensation Commissioner is held to be maintainable.
However in the absence of any positive evidence, either oral or in the
absence of any undertaken in Ex.C1, I find that the claim petitioner must
be given opportunity.
7. In the result, these Civil Miscellaneous Appeals are allowed and
the matter is remitted back to the Deputy Commissioner of Labour Court
(Commissioner of Labour), Dindigul, for reconsideration. The claim
petitioner is permitted to adduce necessary evidence to show the
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C.M.A(MD)Nos.1104 and 1105 of 2021
percentage of disability suffered in the accident which had resulted his
earning capacity. The Workmen Commissioner is directed to dispose of
the claim petitions within a period of twelve (12) weeks from the date of
receipt of a copy of this order. No Costs. Consequently, connected
miscellaneous petitions are closed.
09.03.2022
Index:Yes/No
Internet:Yes/No
PJL
To
1.The Commissioner for Employees Compensation Court,
(Commissioner of Labour),
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)Nos.1104 and 1105 of 2021
RMT.TEEKAA RAMAN., J.
PJL
JUDGMENT MADE IN
C.M.A(MD)Nos.1104 of 2021
and 1105 of 2021
09.03.2022
https://www.mhc.tn.gov.in/judis
