Madras High Court
Tamilselvi vs Ilangovan on 19 October, 2024
C.M.A.(MD) Nos.481 & 648 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 16.10.2024
Pronounced on 19.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) Nos.481 & 648 of 2021
and
C.M.P.(MD) No.6189 of 2021
C.M.A.(MD) No.481 of 2021
1.Tamilselvi
W/o.Rajamani
2.Minor.Karuppusamy
S/o.Rajamani
3.Minor.Manikandan
S/o.Rajamani
4.Minor.Vinothini
D/o.Rajamani
[Minor second to fourth appellants are
represented through their mother and next
friend, the first appellant]
5.Veeranathevar
S/o.Muthuthevar ... Appellants
Vs.
1.Ilangovan
S/o.Pitchai Thevar
_______________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 15
C.M.A.(MD) Nos.481 & 648 of 2021
2.Nagarajan
S/o.Valivittan
3.The Branch Manager,
M/s.Oriental Insurance Co. Ltd.,
No.82, I Floor, Thirumalai Plaza,
New Tharapuram Road,
Palani Town, Dindigul District. ... Respondents
[R2 - Notice was dispensed with vide order of this
Court dated 20.06.2024]
Prayer: Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, 1923 to set aside the award dated
09.02.2021 made in W.C.No.81 of 2014 on the file of the Commissioner
for Workman Compensation (Commissioner for Workmen), Dindigul.
For Appellants : Mr.V.Malaiyendran
For R1 : No appearance
For R3 : Mr.K.Balasubramanian
C.M.A.(MD) No.648 of 2021
The Branch Manager,
Oriental Insurance Company Ltd.,
No.82, First Floor, Thirumalai Plaza,
Puthu Dharapuram Road,
Palani Town, Dindigul District. ... Appellant
Vs.
1.Palmani
W/o.Late.Senthilkumar
_______________
https://www.mhc.tn.gov.in/judis
Page No. 2 of 15
C.M.A.(MD) Nos.481 & 648 of 2021
2.Minor.Kalai Arasu
S/o.Late.Senthilkumar
3.Minor.Kamalesh
S/o.Late.Senthilkumar
[Minor second and third respondents are
represented by their mother and guardian,
the first respondent]
4.Ammapattiyan
S/o.Vellaiyan
5.Lakshmi
W/o.Ammapattiyan
6.Ilangovan
S/o.Pitchaithevar
7.Nagarajan
S/o.Vazhivittan ... Respondents
[R6 remained ex parte before the lower court &
R7 - Notice was dispensed with vide order of this
Court dated 20.06.2024]
Prayer: Civil Miscellaneous Appeal filed under Section 30 of the
Workmen's Compensation Act, 1923 to set aside the Judgment and
Decree dated 09.02.2021 passed by the Commissioner for Workmen's
Compensation (Commissioner for Workmen), Dindigul in W.C.No.82 of
2014 granting compensation of Rs.8,28,205/- (Rupees Eight Lakhs
Twenty Eight Thousand Two Hundred and Five only).
For Appellant : Mr.K.Balasubramanian
_______________
https://www.mhc.tn.gov.in/judis
Page No. 3 of 15
C.M.A.(MD) Nos.481 & 648 of 2021
For R1 to R5 : Mr.V.Malaiyendran
For R6 : No appearance
COMMON JUDGMENT
Both these appeals are taken up together for final disposal because
they challenge the common order passed by the Commissioner for
Workmen's Compensation (Commissioner for Workmen), Dindigul, in
two claim petitions.
2. C.M.A.(MD) No.481 of 2021 has been filed by the claimants,
aggrieved by the dismissal of their claim petition in W.C.No.81 of 2014.
C.M.A.(MD) No.648 of 2021 has been filed by the Insurance Company,
aggrieved by the grant of compensation to the legal heirs of one of the
deceased in W.C.No.82 of 2014.
3. The legal heirs of the two deceased had filed separate claim
petitions before the Commissioner, stating that both the deceased were
working as loadmen in the lorry bearing registration No.TN-65-Y-0806,
which belonged to one Mr.Ilangovan (the first respondent in C.M.A.(MD)
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
No.481 of 2021 and the sixth respondent in C.M.A.(MD) No.648 of
2021), and that on 18.05.2014, the deceased went to a brick kiln, where,
while removing sand, they were buried under the sand and died on the
spot. The claimants had also impleaded one Mr.Nagarajan, the original
insured, who had sold the vehicle to Mr.Ilangovan, in whose name the
Registration Certificate was subsequently transferred. However, the name
transfer in the insurance policy had not been effected.
4. Mr.Ilangovan, the owner of the lorry, remained ex parte before
the Tribunal.
5. Mr.Nagarajan, the original insured, had filed a counter denying
the averments in the claim petitions and stating that he had sold the
vehicle to the said Mr.Ilangovan 1 ½ years prior to the date of the accident
and was unaware of the incident or the death of the deceased, and
therefore, he is not liable to pay any compensation.
6. The Insurance Company had filed a counter, denying the
averments in the claim petitions and stating that the claimants are bound
to establish the employee-employer relationship; that the insured was one
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
Mr.Nagarajan, and therefore, there is no privity of contract between
Mr.Ilangovan and the Insurance Company, and therefore, they are not
liable to pay compensation.
7. In W.C.No.81 of 2014 [C.M.A.(MD) No.481 of 2021], the
claimants examined P.W.1 and marked Exs.P1 to P6. In W.C.No.82 of
2014 [C.M.A.(MD) No.648 of 2021], the claimants examined P.W.1 and
marked Exs.P7 to P9. The Insurance Company examined R.W.1 and R.W.
2 and marked Exs.R1 to R3, in both the claim petitions.
8. The Commissioner dismissed the claim petition in W.C.No.81 of
2014 filed by the legal heirs of the deceased Rajamani and allowed the
claim petition in W.C.No.82 of 2014 filed by the legal heirs of the
deceased Senthilkumar, by granting a compensation of Rs.8,28,205/-.
9. Mr.K.Balasubramanian, the learned counsel for the appellant in
C.M.A.(MD) No.648 of 2021 submitted that the claimants in W.C.No.82
of 2014 had not established the employee-employer relationship between
the deceased and the said Mr.Ilangovan [the sixth respondent in C.M.A.
(MD) No.648 of 2021]; that the evidence would suggest that the deceased
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
was never employed under the sixth respondent Mr.Ilangovan; and that
since the finding of the Commissioner is perverse, the award has to be set
aside.
10. The learned counsel for the Insurance Company/third
respondent in C.M.A.(MD) No.481 of 2024 submitted that the dismissal
of the claim petition in W.C.No.81 of 2014 filed by the legal heirs of the
deceased Rajamani is in accordance with law and therefore, the said
appeal has to be dismissed.
11. Mr.V.Malaiyendran, the learned counsel for the claimants,
insofar as C.M.A.(MD) No.481 of 2024 is concerned, submitted that the
evidence of P.W.2 and Exs.P2, P6, and P7 have been ignored by the
Commissioner; and that since the finding of the Commissioner is
perverse, this Court may set aside the dismissal of the claim petition in
W.C.No.81 of 2014 and award compensation to the legal heirs of the
deceased Rajamani. The learned counsel, insofar as C.M.A.(MD) No.648
of 2021 is concerned, submitted that the compensation awarded to the
legal heirs of the deceased Senthilkumar in W.C.No.82 of 2014 is in
accordance with the evidence; and that, in the absence of any substantial
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
questions of law raised, C.M.A.(MD) No.648 of 2021 filed by the
Insurance Company may be dismissed.
12. In C.M.A.(MD) No.481 of 2021 filed by the legal heirs of the
deceased Rajamani, this Court had framed the following substantial
question of law:
Whether there was perversity in the findings of the
tribunal that there was no employer employee relationship
between the first respondent and the deceased inspite of
the availability of documents marked as Exs.P2, P6 and P7
and the evidence adduced by P.W.2?
13. In C.M.A.(MD) No.648 of 2021 filed by the Insurance
Company, this Court had framed the following substantial questions of
law:
1. Whether the Commissioner for Workmen's
Compensation erred in fastening the liability on the
appellant / insurer, when the claimants have failed to
prove that there existed relationship of employer and
employee between the first respondent and the deceased?
2. Whether the Commissioner for Workmen's
Compensation erred in mulcting liability on the appellant /
insurer, without considering and deciding the material
aspects as to whether there was actual use of the vehicle
and there was any connection between the cause of death
and the use of the vehicle?
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
14. This Court proposes to deal with the substantial questions of
law framed in each of the appeals separately.
15. In this case, the claimants, who are the wife, the children, and
the parents of the deceased Senthilkumar, had examined P.W.1, the wife
of the deceased, who had deposed that her husband was employed as a
loadman in the lorry, which belonged to one Mr.Ilangovan. The manner
of the accident has also been spoken to by P.W.1 in both W.Cs., which is
corroborated by the averments in the FIR (Ex.P1) registered based on the
complaint given by the Village Administrative Officer of Periyampatti
Village. The appellant has not let in any contra evidence.
16. In the light of the evidence before the Commissioner, the factual
finding of the Commissioner that the claimants had established the
employee-employer relationship between the deceased and the said
Mr.Ilangovan cannot be faulted.
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
17. The insurance was originally taken by one Mr.Nagarajan.
Subsequently, the Registration Certificate was transferred in the name of
the said Mr.Ilangovan. However, the insurance has not been transferred in
the name of the said Mr.Ilangovan. The law is well settled. In a decision
in United India Insurance Vs. M.Periyasamy and another, reported in
2008 (2) TN MAC 502, a learned Single Judge of this Court held that on
the date of the accident, if the name transfer in the insurance policy has
not been effected but the transfer is effected in the Registration
Certificate, it cannot be said that there was no privity of contract between
the transferee and the insurance company at the time of the accident. The
Hon'ble Supreme Court, under similar circumstances, in the case of
Mallamma (Dead) by Lrs. Vs. National Insurance Company Limited
and Others, reported in (2014) 14 SCC 137, held that since the ownership
of the vehicle had been transferred and was covered under a valid
insurance policy, it cannot be said that there was no privity of contract
between the insurer and the transferee, in view of the deeming provision
contained in Section 157(1) of the Motor Vehicles Act, 1988.
18. In view of the above, in the present case also, it cannot be said
that there is no privity of contract between Mr.Ilangovan and the
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
Insurance Company. Therefore, this Court is of the view that the factual
finding of the Commissioner is not perverse, and hence, no interference is
called for. The substantial questions of law are answered accordingly.
19. According to the claimants, one Palmani, the wife of the
deceased Senthilkumar, who was examined as P.W.1 in W.C.No.82 of
2014, had deposed about the relationship between the said Rajamani and
Ilangovan. The claimants had examined one Tamilselvi, the wife of the
Rajamani, as P.W.1 in W.C.No.81 of 2014. She had deposed that the said
Rajamani was employed under the said Ilangovan. However, the evidence
of R.W.1, the Village Administrative Officer, is that the said Rajamani
took the deceased Senthilkumar and his (Rajamani) son Manikandan to a
land that belonged to one Kumarasen for the purpose of illegally loading
sand in a lorry belonging to the said Ilangovan for the brick kiln operated
by the deceased Rajamani, and that Rajamani was not employed as a
loadman. The FIR (Ex.P1) shows that Rajamani, Senthilkumar, and
Manikandan went to the land belonging to Kumarasen to take sand for the
brick kiln owned by the deceased Rajamani, and the VAO had sought for
action against Kumarasen for permitting illegal quarrying of sand from his
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
land. The evidence before the Commissioner thus would show that
Rajamani was running a brick kiln and was not working as a loadman
under the said Ilangovan.
20. Ilangovan remained ex parte before the Commissioner and has
not chosen to enter appearance before this Court.
21. Further, this Court finds that though the appellants in C.M.A.
(MD) No.481 of 2021, in the grounds of appeal, had stated that P.W.2 was
examined, the first claimant in both W.Cs. were examined as P.W.1 in the
respective W.Cs. and no P.W.2 was examined. That apart, in the grounds
of appeal, the FIR was shown as Ex.P2, the final report as Ex.P7, and
Form IV issued by the Inspector of Factories as Ex.P6. However, the
records indicate that no such documents were filed before the
Commissioner. On the other hand, Ex.P1 is the FIR, and Exs.P6 and P7
are the death certificates of the deceased. According to the appellants,
Exs.P2, P6, and P7 are documents fitted to prove the employer-employee
relationship, which is not so. These documents are of no avail to the
claimants for proving that relationship. Therefore, in the absence of any
evidence to establish the employer-employee relationship, and since there
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
is evidence to suggest that Rajamani was running a brick kiln, the factual
finding of the Commissioner cannot be said to be perverse. As such, no
interference is called for. The substantial question of law is answered
accordingly.
22. Therefore, this Court is of the view that the common order of
the Commissioner in both claim petitions is liable to be confirmed and is
confirmed. Both the appeals are liable to be dismissed.
23. The claimants in W.C.No.81 of 2014 are entitled to the
compensation as per the apportionment fixed by the Commissioner. The
first, fourth, and fifth claimants in W.C.No.81 of 2014 are permitted to
withdraw their shares along with the proportionate interest and costs, less
the amount already withdrawn, if any, by filing suitable application before
the Commissioner. Since the second and third claimants in W.C.No.81 of
2014 are minors, their shares are directed to be deposited in an interest-
bearing fixed deposit [F.D.] in any nationalized bank until they attain
majority. The first claimant in W.C.No.81 of 2014, who is their mother
and natural guardian, is permitted to withdraw the accrued interest once
every six months.
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
24. In the result, both these Civil Miscellaneous Appeals are
dismissed. No costs. Consequently, the connected Miscellaneous Petition
is closed.
19.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Commissioner for Workmen,
The Commissioner for Workmen's Compensation,
Dindigul, Dindigul District.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
_______________
https://www.mhc.tn.gov.in/judis
C.M.A.(MD) Nos.481 & 648 of 2021
SUNDER MOHAN, J.
JEN
Pre-Delivery Common Judgment made
in
C.M.A.(MD) Nos.481 & 648 of 2021
19.10.2024
_______________
https://www.mhc.tn.gov.in/judis
