Madras High Court
Iffco Tokyo General Insurance vs Chellam on 5 January, 2024
C.M.A.(MD).No.836 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 06.12.2023
PRONOUNCED ON : 05.01.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.836 of 2011
Iffco Tokyo General Insurance
Co. Ltd.,
No.28 (old No.195) 1st & 2nd Floor,
North Usman Road, T.Nagar,
Chennai 600017.
Through its Manager. ... Appellant
Vs.
1.Chellam
2.S.Baladevi
3.S.Rajakumari
4.Minor.S.Rajasekar
(Minor 4th respondent is rep. By his mother
and next friend, the first respondent)
5.S.Jennath Begam ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 30 of
Workmen Compensation Act, to set aside the award dated 14.03.2011
received on 16.03.2011 made in W.C.No.165 of 2007 on the file of the
1/16
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C.M.A.(MD).No.836 of 2011
Commissioner of Workmen Compensation (Deputy Commissioner of
Labour), Madurai.
For Appellant : Mr.S.Srinivasa Raghavan
For R1 to R4 : Mr.P.Thiagarajan
For R5 : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal is filed as against the judgment
and award passed by the Commissioner of Workmen's Compensation
(Deputy Commissioner of Labour), Madurai in W.C.No.165 of 2007
dated 14.03.2011 by the appellant insurance company.
2.For the sake of convenience, the parties are addressed herein as
per the rank in W.C.No.165 of 2007.
3.The brief facts leading to the filing of the Civil Miscellaneous
Appeal is as follows:-
The petitioners are the legal heirs I.e. wife and children of the
deceased workman namely Sundaram. The first respondent is the
employer of the deceased workman and the second respondent is the
insurance company. On 03.06.2006, the deceased was travelling in a van-
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goods carrier belonging to the first respondent bearing registration
No.TN-63-Y-6060. On 03.06.2006 at about 11.45 p.m., while the said
van was plied from Puduvayal to Madurai, along with rice bags, the first
respondent driver drove the van in a rash and negligent manner and
dashed the van as against a tamarind tree. As a result of which, the
deceased who travelled in the said van sustained grievous injuries and
died on the spot and he was 53 years old at the time of death. The
deceased person was engaged by the first respondent as loadman and also
for the purpose of collecting the charges for transporting goods and for
canvassing loads. A criminal case was registered by Nachiyapuram
Police Station under Section 304A of IPC in Crime No.56 of 2006 as
against the driver of the first respondent. In view of the death of the
deceased, the petitioners have filed a claim petition seeking
compensation of Rs.2,85,360/-.
4.The second respondent had filed a counter and emphatically
denied that there was no employer and employee relationship between
the first respondent and the deceased and hence the claim itself is not
maintainable before the Commissioner of Workmen Compensation. It is
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further contended that the deceased actually travelled in a goods carrier
as an unauthorized/gratuitous passenger only and in view of the fact that
such a class of passenger is not covered by the policy a claim under the
Motor Vehicles Act is not maintainable. Further this claim is filed
fraudulently under the Workmen's Compensation Act by stating that the
deceased was actually working under the first respondent. It is also
contended that there is no negligence on the part of the driver of the
goods carrier bearing Registration No.TN-63-Y-6060 and the accident
had occurred only due to the negligence of the deceased himself. Having
travelled in the said vehicle as unauthorized passenger without following
the traffic rules in any event the claim of Rs.2,85,360/- though restricted,
is not tenable for the death of the deceased without concrete proof of
employment with the first respondent.
5.However, the learned Commissioner had admitted the case in
W.C.No.165 of 2007 and framed four issues and examined P.W.1 and
marked Ex.P1 to Ex.P5 on the side of the petitioners and on the side of
the respondents, examined R.W.1 and R.W.2 and marked Ex.R1 to
Ex.R5. The learned Tribunal having scrutinize various documents
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produced before it and also considering the evidence deposed before the
same and on the basis of arguments putforth by both the parties, came to
a conclusion that the deceased was the workman of the first respondent
and he died only during the course of employment. That apart, on the
basis of G.O.Ms.No.47 Labour and Employment Department dated
01.08.2003 the learned Tribunal fixed the monthly salary of the deceased
equivalent to that of loadman at Rs.3,104 + monthly batta of Rs.585/-
and fixed the monthly salary as Rs.3,689/-. The Compensation was
calculated by considering the age of the deceased I.e., 53 years and fixing
the relevant factor as 142.88 and the compensation was arrived is as
under:-
Head Compensation awarded
(I)Monthly Salary: Rs.3,689/-
(ii)Age and Relevant Factor: 53, 142.88
(iii)Compensation Calculation: Rs.3,689x50%x142.88 =
Rs.2,63,173/-
(iv)Funeral Expenses: Rs.2,500/-
Total compensation awarded: Rs.2,65,173/- with interest @
12% from the date of the claim
until the realization and costs.
6.That apart the learned Commissioner concluded that since the
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van involved in the accident was insured with the second respondent
insurance company on behalf of the first respondent, the compensation
should be paid by the second respondent.
7.Challenging the same, the second respondent/insurance company
has filed this Civil Miscellaneous Appeal contending that the deceased
could never be considered as workman under the provision of Workmen
Compensation Act as the deceased happened to be an Accountant under
the first respondent and such a class of person cannot be deemed to be a
workman under Section 2(1)(n) of the Workmen Compensation Act and
the schedule therein. It is also submitted by the learned counsel
Mr.S.Srinivasa Raghavan appearing for the appellant/second respondent
that even in the First Information Report and other criminal court
records, the deceased was stated to be an Accountant only and hence, the
learned Tribunal ought to have concluded that he is an Accountant and
ought to have arrived at a decision that he is not at all workman of the
first respondent. It is emphatically contended by the learned counsel for
the appellant/second respondent that Section 147 of Motor Vehicles Act
is very clear that except driver, cleaner, loadman and owners or
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authorized representative of the goods confined in the goods carrier, no
one is permitted to travel in the goods carrier and the insurance company
need not indemnify the first respondent. It is further argued that the
authorities under the Motor Vehicles Act, 1988 especially those under
Section 147 and 149 of the Act, are competent authorities to deal with the
issue. The claimants ought not to have invoked the provisions of
Workmen's Compensation Act, 1923. It is further contended by the
learned counsel for the appellant/second respondent that the seating
capacity of the vehicle involved in the accident is 1+1 and hence, the
Accountant of the first respondent is not permitted to travel as a
passenger in the goods vehicle. Thereby, he sought for allowing the
appeal.
8.Per contra the learned counsel appearing for the respondents 1 to
4, Mr.P.Thiagarajan submitted that the appellants failed to prove that the
deceased person was not a workman of the first respondent. That apart
the second respondent insurance company have taken the defence that
the deceased person was an Accountant under the first respondent and
such a class of persons cannot be deemed to be a workman under Section
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2(1)(n) of Workman's Compensation Act and schedule therein and that
such an argument is not sustainable. He further submitted that the second
respondent's arguments that the learned Tribunal erred by considering an
Accountant who had travelled in the goods vehicle as loadman will not
hold good for the reason that if the second respondent wanted the learned
Tribunal to have considered the deceased as the Accountant of the first
respondent then the second respondent ought to have proved the same in
terms of Section 101 of the Indian Evidence Act, 1872. On failing to
prove the same in accordance with law, the second respondent's
arguments that the deceased person was only an Accountant not a
loadman cannot be sustained. He further submitted that though the first
respondent employer was set exparte before the learned Tribunal nothing
prevented the second respondent from examining the first respondent as
respondent side witness to prove that the deceased had never been either
a workman or a loadman in terms of the counter filed before the learned
Tribunal or that the deceased worked only as the Accountant in terms of
ground of appeal preferred by the second respondent. But such an
exercise has not been done by the second respondent and on that ground
alone, this appeal is liable to be dismissed.
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9.In the instant case, the pertinent question which has to be
decided is whether the learned Tribunal is justified in compensating the
petitioner by holding that the deceased namely Sundaram had been the
loadman of the first respondent vehicle bearing Registration No.TN-33-
Y-6060, when he died in an accident on 03.06.2006 at about 11.45 p.m.,
while he was travelling in the aforesaid vehicle and when the same
dashed against the tamarind tree at the negligent driving of the driver
who drove vehicle ?
10.This claim petition has been filed before the Commissioner of
Workman Compensation under the Workmen's Compensation Act under
Section 22 of the aforesaid Act. The liability to pay compensation under
Workman's Compensation Act, 1923 herein after called as 'the Act' arises
in the event of accidents during the course of employment of a workman.
For the purposes of this Act, the term 'workman' has been defined under
Section 2(1)(n) of the Act and as per Section 2(1)(n) of the Act, a person
who is employed in casual basis and who is employed otherwise than for
the purposes of the employer's trade or business is not a workman within
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the meaning of the Workman Compensation Act. Thus the two
ingredients which disentitle a person to be termed as a workman are:
(i)he must be employed on actual basis;
(ii)he must be employed otherwise than for the purposes of
employer's trade or business. On a careful scrutiny of the language
employed in the proviso even if one of the two ingredients is absent, such
a person can be termed as a workman.
11.In the instant case, the deceased Sundaram died while he was
travelling in a goods carrier/van bearing registration No.TN-33-Y-6060
carrying rice bags from Pondicherry to Madurai. The first respondent
employer had remained conspicuously exparte before the learned
Tribunal and before this Court. The second respondent insurance
company which took the defence before the learned Tribunal that there
were never been a employer and employee relationship between the first
respondent and deceased Sundaram had taken a U turn has filed this
appeal and has admitted that the deceased was an Accountant with the
first respondent.
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12.However, a critical perusal of the award passed by the learned
Tribunal would reveal that the second respondent had miserably failed to
prove neither the deceased Sundaram was not at all an employee of the
first respondent nor that he served only as an Accountant with the first
respondent. Whoever wants any Court to give judgment on the existence
of any fact which he asserts, they must proved that facts exists. However,
the second respondent who wanted this Court to give judgment on his
submission that the deceased Sundaram has been was only the
Accountant never took any diligent steps either by examining the first
respondent employer or any other person before the learned Tribunal to
prove that the deceased had never been an employee or had been just an
Accountant with the first respondent. That apart having admitted the fact
that the deceased person had been the Accountant in the grounds of
appeal. I find no irregularities in the presumption made by the learned
Tribunal that had the deceased being an Accountant, he would have
served only by sitting in the office and there would not have been any
occasion to travel in the goods carrier in which rice bags were
transported. The fact that the deceased Sundaram travelled from
Pondicherry to Madurai in the goods carrier carrying rice bags at the time
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of accident would suffice to prove that the deceased not only looked into
the matter of accounts but also he served as the loadman who normally
loaded and unloaded the goods but also who got engaged in canvassing
loads for the purpose of business of the first respondent on the basis of
the proof affidavit of P.W.1.
13.That apart the argument of the learned counsel for the appellant
herein is that the avocation of the Accountant will not be covered under
the definition of 'employee' under Section 2(d)(d) of Employees
Compensation Act, 1923 and those covered under schedule 2 of the
aforesaid Act. Section 2(1)(d)(d) and 2(c) is extracted as follows:-
“[(d)(d) “employee” means a person, who is -
(c)a person recruited as driver, helper, mechanic, cleaner
or in any other capacity in connection with a motor vehicle.”
14.The deceased Sundaram had travelled in the goods carrier
belonging to the first respondent employer and in accordance with
evidence deposed by P.W.1, he travelled as the loadman, who would be
covered under the category of helper in connection with the motor
vehicle who died in the course of journey from Puducherry to Madurai
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carrying rice bags. Even assuming that the deceased Sundaram would not
be covered under the category of employee as defined under Section 2(1)
(d)(d) and (c), it is pertinent to mention that the aforesaid Section has
been inserted by Act 45 of 2009 with effect from 18.01.2010. Before
18.01.2010, the definition of Workman was covered under the
Workmen's Compensation Act, 1923.
15.On careful perusal of definition of workman as provided under
Section 2(1)(n) of Workmen's Compensation Act, the words “other than
the person whose employment is of casual in nature or who is employed
otherwise than for the purposes of the employers trade or business” stood
omitted by the amendment Act 2000 with effect from 08.12.2000, where
after the workman's definition came to be enlarged and the person
employed in any such capacity as specified in schedule 2 has to be
termed as workman. The alleged accident took place on 03.06.2006 and
the definition of workman as given in Section 2(1)(n) reads as under:-
“(n) ‘workman’ means any person who is-
(I)…………………………………………..
(ia)(a)…………………………………..
(b)…………………………………..
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(c)…………………………………..
(c)…………………………………..
(ii)employed in any such capacity as is specified in
Scheduled II, whether the contract of employment was made
before or after the passing of this Act and whether such
contract is expressed or implied, oral or in writing, but does
not include any person working in the capacity of a member of
the Armed Forces of the Union; and any reference to a
workman who has been injured shall, where the workman is
dead, include a reference to his dependants or any of them.”
16.No doubt vide amendment Act, 2000, definition of “workman”
came to be amended, thereby words “other than the persons whose
employment is of casual in nature or who is employed otherwise than for
the purposes of the employers trade or business” were deleted, meaning
thereby at the time of alleged accident, the deceased Sundaram was the
workman and as such, the respondents/claimants/legal heirs/dependants
rightly filed petition under Section 22 of Workmen Compensation Act
and it cannot be said that the learned Tribunal below misconstrued and
misinterpreted the provisions of Section 2(1)(n) of the Act.
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17.Hence, I have no hesitation to hold that there is no illegality and
infirmity in the award passed by the learned Tribunal.
18.In view of the same, this Court is no inclined to interfere with
the award by the learned Tribunal. Accordingly, this Civil Miscellaneous
Appeal stands dismissed. There shall be no order as to costs.
05.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
To
1.The Commissioner of Workmen Compensation,
(Deputy Commissioner of Labour), Madurai.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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L.VICTORIA GOWRI, J.
Mrn
05.01.2024
https://www.mhc.tn.gov.in/judis
