Madras High Court
The Divisional Manager vs P.Senthilkumar on 16 August, 2024
C.M.A.(MD) No.868 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 12.08.2024
Pronounced on 16.08.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.868 of 2010
The Divisional Manager,
M/s.National Insurance Company Ltd.,
No.3, North Veli Street,
Madurai-1. ... Appellant
Vs.
1.P.Senthilkumar
S/o.A.Palanimuthu
2.The Management,
M/s.Rajalakshmi Agencies,
Plot No.535, K.K.Nagar,
Madurai-1. ... Respondents
Prayer:- Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, 1923, to set aside the order dated
16.03.2017 passed in W.C.No.428 of 2002 on the file of the
Commissioner for Workmen's Compensation, Madurai.
For Appellant : Mr.J.S.Murali
For R1 : No appearance
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Page No. 1 of 10
C.M.A.(MD) No.868 of 2010
For R2 : No appearance
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the award dated 16.03.2017 passed by the Commissioner for
Workmen's Compensation, Madurai in W.C.No.428 of 2002.
2. The first respondent had filed a claim petition before the
Commissioner for Workmen's Compensation in W.C.No.428 of 2002
stating that he was employed as an auto driver under the second
respondent and during the course of employment, on 12.09.2002, while he
was riding the autorickshaw and was negotiating a bend in the hills, the
autorickshaw went out of his control and capsized, as a result of which, he
sustained grievous injuries.
3. The second respondent, the owner of the autorickshaw, filed
counter statement before the Commissioner stating that the
Autorickshaw's Registration No.TN-59-Y-8856 is not correct; that the
first respondent was only a rider of the autorickshaw bearing Registration
No.TN-59-J-8852 which belonged to him; and that he was working on a
contract basis.
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4. The appellant Insurance Company also filed the counter
statement before the Commissioner stating that the averments made in the
claim petition were false; that the vehicle bearing Registration No.TN-59-
Y-8856 was not involved in the accident; and that there was no employer-
employee relationship between the first and second respondents herein.
5. The first respondent herein filed an application before the
Commissioner seeking amendment in his claim petition as regards the
registration number of the autorickshaw. He had stated that by mistake,
he had mentioned the registration number of the autorickshaw as “TN-59-
Y-8856” instead of “TN-59-J-8852”. The said application was allowed by
the Commissioner and it had become final as there was no challenge to it.
6. In the meanwhile, the appellant filed a petition for referring the
matter to the CBCID since they suspected that there was foul play in the
claim petition. The said petition was allowed. The CBCID conducted the
investigation and closed the case as 'Action was dropped'.
7. The first respondent before the Commissioner examined himself
as P.W.1 and Doctor who treated him as P.W.2 and marked Exs.A1 to
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A12 and Exs.C1 and C2. The appellant Insurance Company examined two
witnesses and marked four documents on their side.
8. The Commissioner after taking into consideration the oral and
documentary evidence held that the first respondent was earning a sum of
Rs.2,086/- per month and assessed the functional disability of the first
respondent at 37% based on the Disability Certificate issued by the Doctor
and awarded a total compensation of Rs.93,387/- to the first respondent.
9. The learned counsel for the appellant Insurance Company
submitted that the second respondent who is the owner of the
autorickshaw initially stated that the registration number of the
autorickshaw mentioned by the first respondent in the claim petition was
erroneous and further stated that the first respondent was only working on
a contract basis and was riding another autorickshaw bearing Registration
No.TN-59-J-8852, which enabled the first respondent to file amendment
petition; and that the entire exercise is an afterthought and was made only
with a view to claim compensation from the appellant Insurance
Company. The learned counsel for the appellant therefore submitted that
the award of the Commissioner deserves to be set aside.
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10. Although notice has been served to the first respondent and the
learned counsel Mr.S.Ramesh @ Ramaiah had entered appearance and
appeared on the previous hearings, there is no representation on the date
of hearing. Further, though notice has also been served to the second
respondent-Company and its name is printed in the cause list, there is no
representation for the second respondent.
11. This Court while admitting this appeal framed the following
substantial questions of law:-
(1) Whether the first respondent herein is a workman and is
entitled to maintain compensation application under the
provisions of the Workmen's Compensation Act, 1923?
(2) Whether the Commissioner for Workmen's
Compensation is right in holding that the first
respondent herein sustained injuries on account of and in
the course of his employment under the second
respondent herein in the absence of proof?
12. The main submission of the learned counsel for the appellant is
that the first respondent had not established the employer-employee
relationship between the first and second respondents; that the second
respondent had made contradictory statements in the counter statement
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filed before the Commissioner; that no document was produced to
substantiate the employment under the second respondent; and that
therefore the Commissioner erred in awarding the compensation.
13. This Court finds that the first respondent had examined himself
as P.W.1, the Doctor as P.W.2 and marked documents to prove the
treatment taken by him. Ex.A1 is the copy of the FIR, in which, the first
respondent had explained about the nature of the accident and stated how
he fell down from the autorickshaw. However, the registration number of
the autorickshaw was wrongly mentioned in the said FIR. Even in the
claim petition, he had mentioned the wrong registration number of the
autorickshaw. Thereafter, the first respondent had filed an amendment
petition to rectify the error and same was allowed by the Commissioner.
There is no challenge to the said order passed by the Commissioner
permitting the amendment, as stated earlier. Likewise, as stated earlier, the
CBCID in the report dated 05.03.2007 found that there is no foul play and
closed the case as 'Action was dropped'.
14. However, the second respondent had filed counter statement
before the Commissioner stating that the first respondent was working as
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an auto driver and was riding the autorickshaw bearing Registration
No.TN-59-J-8852. Therefore, the employer-employee relationship
between the first and second respondents has been established before the
Commissioner. The evidence would therefore clearly establish the
relationship. Hence, the finding of the Commissioner holding that the
first respondent was employed under the second respondent and the
accident took place during the course of his employment is in accordance
with law.
15. As regards the quantum of compensation, the appellant is
unable to point out any infirmity as the loss of earning capacity fixed at
37% is based on the evidence of P.W.2 Doctor and his Certificate
(Ex.A7). The wages fixed by the Commissioner based on the minimum
wages prescribed for auto drivers is also in accordance with law. For all
reasons, this Court is of the view that the Commissioner had passed the
impugned award in accordance with law.
16. The substantial questions of law are answered accordingly. This
Civil Miscellaneous Appeal is liable to be dismissed.
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17. The appellant Insurance Company is directed to deposit the
compensation together with the interest as awarded by the Commissioner,
less the amount already deposited, if any, within a period of 6 weeks from
the date of receipt of a copy of this Judgment.
18. On such deposit, the first respondent is permitted to withdraw
the compensation and interest, less the amount already withdrawn if any,
by filing appropriate application before the Commissioner.
19. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs.
16.08.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
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Copy To:
1.The Commissioner for Workmen's Compensation,
Madurai.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
JEN
Pre-Delivery Judgment made
in
16.08.2024
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