Madras High Court
Jerald vs S.Janaki on 14 August, 2023
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
Jerald ... Appellant
Versus
S.Janaki ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, 1923, seeking to set aside the order dated
29.10.2021 passed in W.C.No.78 of 2014, by the Joint Commissioner of
Labour 1, Chennai.
For Appellant : Mr.P.M.Bakthavatsalam
for Mr.K.Perumal
For Respondent : Mr.S.Ravi
JUDGMENT
This appeal has been filed by the appellant/respondent challenging
the compensation awarded by the Joint Commissioner in W.C.No.78 of
2014, dated 29.10.2021.
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
2.The claim petition was filed stating that the deceased-husband of
the respondent was working as mason in the building belonging to the
appellant. On 29.09.2006 at about 11.30 a.m., while the deceased was
working in the second floor of the building, he met with an accident and
fell down from the second floor; that due to the said accident, he
sustained compound fracture in both legs and admitted in the hospital;
that thereafter, he was unable to move anywhere and bedridden till his
death on 02.10.2011 and that thus, she was entitled for compensation.
3.The appellant filed a counter denying all the averments made in
the claim petition and stated that the deceased was not working under
him and that he entered into a contract to construct appellant's building;
that as per the agreed contract, money was paid then and there; that while
so, on 29.09.2006, he accidentally fell down in the construction site and
thereafter he recovered from his illness and was working normally in
another site; that therefore, there was no disability caused due to the
accident that took place on 29.09.2006 and thus, he prayed for dismissal
of the claim petition.
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
4.Before the Joint Commissioner, the respondent examined herself
as P.W.1 and marked Ex.P.1 to Ex.P.10 on her side. The appellant
examined himself as R.W.1 but no document was marked by him.
5.The Joint Commissioner after considering the oral and
documentary evidence has held that the accident occurred when the
deceased was under the employment with the appellant, and hence,
directed the appellant to pay a sum of Rs.3,94,120/- to the respondent as
compensation.
6.Aggrieved over the award passed by the Joint Commissioner, the
appellant filed the present appeal challenging the order passed by the
Joint Commissioner.
7.Learned counsel for the appellant submitted that the appellant
has not employed the deceased; that he was employed through a
contractor; that the contractor was not made as a party to the
proceedings; that hence, the appellant cannot said to be liable for paying
compensation. The learned counsel for the appellant further submitted
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
that the alleged accident took place on 29.09.2006 and the deceased was
treated for fracture in the leg and discharged on 09.10.2006. Thereafter,
he was gainfully employed and subsequently died in the year 2011 due to
the renal failure and metabolic de-arrangement. Therefore, the death was
not due to the accident took place on 29.09.2006. Further, the Joint
Commissioner had erroneously determined the compensation by holding
that the death was due to the accident, which is said to have taken place
in the premises belonging to the appellant. In any case, even assuming
that the appellant is liable to pay the compensation, the Joint
Commissioner ought to have assessed functional disability on account of
the injury suffered by him and awarded compensation on that basis since
the respondent has not established the nexus between the death and the
accident.
8.Learned counsel appearing for the respondent submitted that the
Joint Commissioner had factually found that the deceased died due to the
injuries sustained by him in the accident that took place on 29.09.2006.
The said factual finding is not erroneous and hence, the same cannot be
interfered in the instant appeal. Further, the Commissioner had also
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
found that the deceased died during the course of the employment with
the appellant. The said finding which is factual cannot be interfere with
in the absence of any substantial question of law raised in the instant
appeal, and hence submitted that the appeal may be dismissed.
9.Heard the learned counsel for the appellant as well as the
respondent and perused the materials available on record.
10.This Court finds that on facts that the Joint Commissioner
found that the appellant was liable to pay compensation by holding that
the deceased was in employment with the appellant at the time of
accident. This Court is not inclined to interfere with the said factual
finding, as there is no infirmity in the said finding.
11.As regards the question as to whether the respondent has
established the nexus between the death and the accident, this Court finds
that the following facts are admitted:
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
11 (a).The accident took place on 29.09.2006. Since the deceased
suffered fracture in the left leg, he was admitted in the hospital and
discharge on 09.10.2006 after treatment. Thereafter, the deceased died on
02.10.2011. The death certificate issued by the hospital reveals the cause
of death as stated below:
“Cause of Death : Septic Artritis / Lt.Elbow EM / Renal failure /
Metabolic de-arrangement”
12.The above admitted fact shows that the respondent had not
established that there was nexus between the death and the accident. The
deceased had suffered renal failure and metabolic de-arrangement.
Therefore, this Court is of the view that the Joint Commissioner had
erroneously held that the death of the deceased was due to the accident.
However, it is seen that the injury occurred during the course of
employment and the compound fracture on the left leg was found to be
grievous in nature. Though the respondent has not produced any
document to establish the functional disability, considering the fact that
the deceased was a mason, this Court is of the view that the deceased
would have suffered functional disability to the extent of 40%. The
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
respondent had not established the income of the deceased. Hence, the
Tribunal fixed Rs.4,000/- as income under the Employees Compensation
Act. There is no challenge to this finding. In respect of an injury, 60% of
the income has to taken into consideration along with the factor
mentioned in the schedule. Thus, the compensation has to be as follows:
Rs.2400 (60% of Rs.4,000) X 197.06 (the deceased was aged 35
years) X 40/100 = Rs.1,89,177.60/-
13.With the above modification, this Civil Miscellaneous Appeal
is partly allowed and the compensation awarded by the Joint
Commissioner at Rs.3,94,120/- is hereby reduced to Rs.1,89,177.60/-
together with interest at 7.5% per annum (excluding the default period, if
any) from the date of petition till the date of deposit. It is stated that the
appellant had already deposited the compensation amount along with
accrued interest amounting to Rs.11,17,859/-. Hence, the respondent is
permitted to withdraw the award amount now determined by this Court
along with interest and costs, less the amount if any, already withdrawn.
No costs. The appellant is permitted to withdraw the excess amount
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
lying in the deposit to the credit of W.C.No.78 of 2014. Consequently,
connected miscellaneous petition is closed.
14.08.2023
rst
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To:
1.The Joint Commissioner of Labour 1, Chennai.
2.The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
SUNDER MOHAN, J.
rst
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
https://www.mhc.tn.gov.in/judis
C.M.A.No.52 of 2022
and C.M.P.No.353 of 2022
14.08.2023
https://www.mhc.tn.gov.in/judis
