Madras High Court
Sivaraj @ Sivarajan vs Manimohan on 22 June, 2023
C.M.A(MD)No.696 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.696 of 2010
Sivaraj @ Sivarajan ... Appellant/Petitioner
Vs.
1.Manimohan
2.The Branch Manager,
Oriental Insurance Company Limited,
Namakkal. ... Respondents/ Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of
Workmen's Compensation Act, against the dismissal order passed by the
learned Commissioner of Workmen's Compensation cum Deputy
Commissioner of Labour, Tiruchirappalli in W.C.No.253 of 2004, dated
21.01.2009 and to set aside the same.
For Appellant : Mr.M.Karthikeya Venkitachalapathy
For R1 : No Appearance
For R2 : Mr.A.Ilango
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C.M.A(MD)No.696 of 2010
JUDGMENT
The present appeal has been filed by a workman challenging the
order passed by the Commissioner of Workmen’s Compensation/ Deputy
Commissioner of Labour, Tiruchirappalli in W.C.No.253 of 2004.
2. According to the claimant, he is a labourer in the rig borewell
which is run by the 1st respondent in the claim petition. On 16.07.2003
when he was working in the rig borewell, he met with an accident and his
fingers in both the hands were amputated. He had taken treatment in
Girishantha Ortho Care at Chitradurga and after taking treatment for 35
days, he had to return back to his home in view of the fact that there was
no assistance from any one of the revenue or police authorities in
Karnataka. He had further contended that he was receiving a salary of
Rs.5,000/- and batta a sum of Rs.50/- per day. He has filed the claim
petition seeking a compensation of Rs.5,00,000/-. Since the borewell was
insured with the 2nd respondent, he made a claim as against the insurance
company also.
3. The owner of the borewell had remained ex parte and the
insurance company had filed a counter contending that no F.I.R has been
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C.M.A(MD)No.696 of 2010
registered relating to the accident and the claimant has not established
that there was an employer-employee relationship between the claimant
and the 1st respondent in the claim petition. They have also contended
that the driver of the 1st respondent was not possessing a valid driving
license at the relevant point of time.
4. The claimant had relied upon Exhibit A.5 discharge summary
issued by Girishantha Ortho Care hospital, Exhibit A.7 cash bill and
Exhibit A.6 lab test report in order to establish his case that he met with
an accident on 16.07.2003 and he had undergone a surgery. However, the
Commissioner under the Workmen’s Compensation Act has relied upon
the first page of discharge summary which reflects that the claimant was
admitted to the hospital on 20.07.2003 and discharged on 24.07.2003. In
view of the said endorsement, the Commissioner had arrived at a finding
that if really the claimant had sustained such grievous injuries, he would
have got admitted in the hospital on 16.07.2003 itself and would not
have waited to get admitted till 20.07.2003. Therefore, the claimant has
not established that the accident has taken place on 16.07.2003 and he
has not established the employer-employee relationship with the 1st
respondent. Based upon the said findings, the claim petition has been
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C.M.A(MD)No.696 of 2010
dismissed in entirety. Challenging the same, the present appeal has been
filed by the claimant.
5. The learned counsel appearing for the appellant/claimant had
contended that the Commissioner has not looked into the 2nd page of the
discharge summary wherein it is recorded that two surgeries have been
performed at P.V.S hospital on 16.07.2003 and 19.07.2003. He further
contended that Exhibit A.7 bills will reflect that the claimant has
undergone surgery on 16.07.2003 and 19.07.2003. He has also referred
to Exhibit A.6 lab test report to indicate that due to the accident, he has
undergone the said test. Therefore, the Commissioner has not properly
appreciated Exhibits A.5 to A.7 and has dismissed the claim petition in
entirety.
6. Per contra, the learned counsel for the respondent/insurance
company has contended that unless the claimant establishes that the
accident has taken place in the course of his employment and his
relationship as an employee of the 1st respondent, the claim petition
cannot be considered on merits.
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C.M.A(MD)No.696 of 2010
7. I have carefully considered the submissions made on either side.
8. A perusal of the 2nd page of Exhibit A.5 which is the discharge
summary clearly indicates that the claimant has undergone two surgeries
on 16.07.2003 and 19.07.2003 at P.V.S.Hospital. The discharge summary
further indicates address of the injured as Kalai borewell who is arrayed
as the 1st respondent in the claim petition. A perusal of Exhibit A.7 also
indicates that the claimant has undergone some surgeries in the hospital
on 16.07.2003 and 19.07.2003. Therefore, the claimant has established
that an accident has taken place on 16.07.2003 and he is an employee of
the 1st respondent in the claim petition. Therefore, the Commissioner was
not right in dismissing the claim petition.
9. In view of the above said deliberations, the order, dated
21.01.2009 made in W.C.No.253 of 2004 is hereby set aside and the
matter is remitted back to the Deputy Commissioner of Labour,
Tiruchirappalli for fresh consideration of the claim petition in the light of
the observations made by this Court. The owner of the borewell as well
as the insurance company are entitled to let in further evidence, if they
are so advised. The Deputy Commissioner of Labour, Tiruchirappalli
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C.M.A(MD)No.696 of 2010
shall dispose of the appeal on or before 31.12.2023.
10. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs.
22.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Workmen's Compensation cum
Deputy Commissioner of Labour,
Tiruchirappalli.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.696 of 2010
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.696 of 2010
22.06.2023
https://www.mhc.tn.gov.in/judis
