Madras High Court

The Divisional Manager vs S.Mangaleswari on 5 September, 2022

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 05.09.2022

                                                       CORAM:

                                  THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

                                              C.M.A(MD)No.39 of 2009


                     The Divisional Manager,
                     The New India Assurance Co.Ltd,
                     248-B, Kamarajar Salai,
                     Madurai-9.                                             ... Appellant
                                                           vs.

                     1.S.Mangaleswari

                     2.Minor S.Navanika

                     3.A.Soman                                             ... Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the
                     Workmen Compensation Act praying this Court to set aside the order
                     dated 30.10.2008 made in W.C.No.141 of 2007 on the file of the
                     Commissioner of Workmen Compensation (Deputy Commissioner of
                     Labour), Madurai.


                                     For Appellant       : Mr.B.Vijay Karthikeyan

                                     For Respondents     : No appearance




                     1/9
https://www.mhc.tn.gov.in/judis
                                                           JUDGMENT
                                                          ************

This Civil Miscellaneous Petition is filed to set aside the order

dated 30.10.2008 made in W.C.No.141 of 2007 on the file of the

Commissioner of Workmen Compensation (Deputy Commissioner of

Labour), Madurai.

2. Brief facts of the claim petition are as follows: -

The deceased workman-Selvam was employed as a driver of the

Tracker bearing Registration No.TN-63-E-4953 under the third

respondent. On 03.02.2007, at about 08.45 hours, in Sivagangai-

Manamadurai Railway line, when the deceased workman drove the said

Tractor for loading coconut, met with an accident. In the impact, the

deceased Workman sustained multiple grievous injuries. Immediately, he

was taken to the Government Rajaji Hospital, Madurai and admitted as

an inpatient, where he died. The deceased workman died during the

course of employment under the third respondent. The third respondent

insured his vehicle with the appellant/Insurance Company. Hence, both

the appellant and the third respondent are jointly and severally liable to

pay compensation to the claimants. The claimants are the wife and

https://www.mhc.tn.gov.in/judis minor daughter of the deceased workman and they were sole dependants

of deceased workman. Hence, they filed the above claim petition

seeking compensation.

3. In the claim petition, the appellant/Insurance Company filed

their counter, wherein, they denied the averment that the deceased was

employed under the third respondent and during the course of

employment, he died. Likewise, the wages and age of the deceased as

pleaded in the petition are not admitted. Further, in the counter, it has

been averred that there is no employee and employer relationship

between the deceased and third respondent. Further, in the counter, it

has been stated that the third respondent is the father of the deceased.

Hence, they prayed for dismissal of the claim petition.

4.Before the lower Court, on the side of the claimants, one witness

was examined as P.W.1 and six documents were marked as Exs.P.1 to P.6.

On the side of the Insurance company, no witness was examined and no

document was produced.

https://www.mhc.tn.gov.in/judis

5. The Commissioner of Workmen Compensation, Madurai, after

considering the oral and documentary evidences and arguments made on

either side, allowed the claim petition and awarded a sum of Rs.

4,18,460/- as compensation to the claimants. Against which, the

appellant/Insurance Company has filed this present appeal.

6.At the time of admitting the Civil Miscellaneous Appeal, this

Court has formulated the following Substantial Question of Law, for

consideration:-

“Whether the Deputy Commissioner of Labour, Madurai erred in fastening the liability on the appellant, when the specific case is that the deceased is the son of the insured and not his workman?

7.The learned counsel appearing for the appellant/Insurance

Company contended that the deceased was the son of the insured and he

was not a workman under the third respondent. There is absolutely no

evidence to show that the deceased was a workman under the insured and

he was paid wages by the insured/third respondent. In the absence of an

employer – employee relationship between the deceased and the insured

https://www.mhc.tn.gov.in/judis viz., the owner of the vehicle, the insurer, viz., the appellant/Insurance

Company cannot be held liable to pay compensation. He would further

submit that there is no legal heirships certificate produced before the

Lower Court and the claimants wantonly have not disclosed the name of

the deceased father. In support of his contentions, the learned counsel

for the appellant/Insurance Company produced the judgment of the

Hon'ble Supreme Court in the case of Gottumukkala Appala Narasimha

Raju and Ors. Vs National Insurance Company Ltd reported in 2007

(1) TN MAC 460. The relevant portion of the said judgment reads as

follows:-

“24.In our considered opinion, it is wholly absurd to suggest that the husband would be a "workman" of his wife in absence of any specific contract. We have no doubt in our mind that for the purpose of proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a "workman" under her appears to be a far-fetched one.”