Madras High Court
Icici Lombard General Insurance ... vs Mrs.Jayanthi W/O. G.K.Ramesh on 19 September, 2024
2024:MHC:3407
CMA NO.1104 OF 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 25 / 07 / 2024
JUDGMENT PRONOUNCED ON : 19 / 09 / 2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
CMA NO.1104 OF 2022
AND CMP NO.8098 OF 2022
ICICI Lombard General Insurance Company Limited,
TP Cell,
No.84 & 85, Walltax Road,
2nd Floor, Chennai – 600 006. ... Appellant /
2nd Respondent
Versus
1.Mrs.Jayanthi W/o. G.K.Ramesh
2.Mrs.Govindammal W/o. Kanniyappan
3.Mr.Kanniyappan
4.Minor Lochana Shree D/o.G.K.Ramesh
5.Minor Mokshan Manikandan ... Respondents 1 - 5 /
Applicants 1 - 5
(4th and 5th minor respondents /
applicants are represented by their
mother - Jayanthi as Natural Guardian &
Next Friend)
6.M.A.Srinivasan ...6th Respondent /
1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 30(1) of the
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CMA NO.1104 OF 2022
Employees Compensation Act, 1923, praying to set aside the Order dated
January 5, 2022 made in E.C.No.125 of 2016 on the file of the Commissioner
of Labour – II / Joint Commissioner of Labour – II, Chennai.
For Appellant : Mr.B.Siva Kollappan
For Respondents 1 to 5 : Mr.F.Terry Chella Raja
(R4 and R5 – Minors for M/s.V.Velu
rep. by R1)
For Respondent – 6 : Ms.S.P.Arthi
Served – No appearance
JUDGMENT
Challenging the Order dated January 5, 2022, passed by ‘the
Commissioner of Labour – II / Joint Commissioner of Labour – II, Chennai’
[henceforth ‘Commissioner’ for brevity] in E.C.No.125 of 2016, the second
respondent therein, namely ICICI Lombard General Insurance Company
Limited, has preferred this Civil Miscellaneous Appeal.
2.For the sake of convenience, the parties will hereinafter be
referred to as per their array before the Commissioner.
Petitioners' case
3.First petitioner is the wife of the deceased - G.K.Ramesh;
second and third petitioners are his parents; and fourth and fifth minor
petitioners are his children.
3.1.The case of the petitioners is that the deceased –
G.K.Ramesh, aged 46 years, was working as a Driver with the 1st respondent,
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CMA NO.1104 OF 2022
the owner of a Car bearing Registration No.TN-01-AT-2992, for a monthly
salary of Rs.20,000/- and a daily batta of Rs.200/-. On May 17, 2016, at about
16.45 hours, on GST Road, near Maduranthakam BDO Office, while the
deceased was driving the Car belonging to the 1st respondent, he met with an
accident and sustained grievous injuries and succumbed to them on the way to
the Hospital. The Special Sub-Inspector of Police, Maduranthakam Police
Station, Kancheepuram District, registered a case in Crime No.293 of 2016
under Sections 279 and 304A of the Indian Penal Code, 1860. First
respondent is the owner of the Car and second respondent is the insurer of the
first respondent Car. According to the petitioners, the deceased died in the
course of his employment under the first respondent. Since the first
respondent’s Car was insured with the second respondent, both the
respondents are liable to pay compensation to the petitioners.
3.2.The petitioners filed a petition before the Commissioner
under Section 10 of the Employees’ Compensation Act, 1923 in E.C.No.125
of 2016, praying for a compensation of Rs.30,00,000/- (Rupees Thirty Lakhs
Only) from both the respondents.
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CMA NO.1104 OF 2022
1st Respondent’s case
4.The first respondent, owner of the Car bearing Registration
No.TN-01-AT-2992, remained absent before the Commissioner and
accordingly, set ex-parte.
2nd Respondent’s case
5.The second respondent – Insurance Company filed counter
statement stating that the deceased was not employed as a Driver under the 1st
respondent and that the accident did not occur in the course of employment.
Further, it denied the age, manner of accident and the cause of death of the
deceased. Further stated that there was no nexus between the alleged accident
and the vehicle bearing Registration No.TN-01-AT-2992. Thus, they prayed to
dismiss the petition.
Trial and Findings of the Commissioner:
6.At trial, on the side of the petitioners, first petitioner –
Mrs.Jayanthi was examined as P.W.1 and Ex-P.1 to Ex-P.6 were marked. On
the side of the second respondent, one Thiru. Shanmugam, Legal Manager of
2nd respondent company was examined as R.W.1 and Ex-R.1 and Ex-R.2 were
marked.
7.The Commissioner framed the following points for
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CMA NO.1104 OF 2022
determination:
“(i)Whether the deceased Ramesh died due to the
injuries sustained by him in course of employment and
arising out of employment?
(ii)Whether the petitioners are entitled to claim
compensation? If so, then what is the quantum of
compensation?
(iii)Who is liable to pay compensation to the
petitioners?”
8.The Commissioner after analyzing the oral and documentary
evidence, held that the death of the deceased was an 'employment injury
death' and thus, answered the first point in favour of the petitioners.
8.1.The Commissioner relying upon the Judgment of this Court
in P.Ramesh Vs. V.Ravi and Another [CMA No.897 of 2018 decided on
January 21, 2021] arrived at a sum of Rs.11,060/- per month as the deceased's
monthly salary and thus, answered the second point in favour of the
petitioners.
8.2.The Commissioner further held that since the first
respondent's vehicle was insured with the second respondent and the
insurance policy was in force at the time of accident, the second respondent
was liable to pay compensation to the petitioners and thus, answered the third
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CMA NO.1104 OF 2022
point against the second respondent – Insurance Company.
8.3.Consequently, the Commissioner allowed the petition
directing the second respondent to deposit a sum of Rs.9,06,777/- (Rupees
Nine Lakh Six Thousand Seven Hundred and Seventy Seven Only) with
interest at the rate of 12 % per annum, by way of demand draft in favour of
the Joint Commissioner of Labour – II, Chennai – 6, within 30 days from the
date of receipt of a copy of the said order.
9.Assailing the said Order passed by the Commissioner, the
second respondent – Insurance Company has preferred this Civil
Miscellaneous Appeal.
Arguments:
10.Heard the learned Counsel appearing for the appellant /
second respondent – Commissioner and the learned Counsel appearing for the
Respondent Nos.1 to 5.
11.The learned Counsel for the appellant / second respondent –
Insurance Company would argue that the Commissioner failed to properly
consider the First Information Report (FIR) which was registered based on the
information given by the brother of the deceased; that the deceased was
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CMA NO.1104 OF 2022
driving his own vehicle when the accident occurred; that it is mentioned in the
FIR that the vehicle belonged to the deceased, which clearly shows that there
was no employer – employee relationship between the deceased and the first
respondent; that the first respondent had sold the Car to the deceased prior to
the accident; that though on the date of the accident, a sum of Rs.8,000/- is
the monthly income fixed under the Workmen's Compensation Act, 1923, the
Commissioner erred in applying Minimum Wages Act, 1948 to arrive at a
sum of Rs.11,060/- as monthly income of the deceased; that the compensation
awarded by the Commissioner is on the higher side. Accordingly, the learned
Counsel prayed to allow the Civil Miscellaneous Appeal and set aside the
Award passed by the Commissioner.
12.Per contra, learned Counsel for the respondents 1 to 5 /
petitioners 1 to 5 would contend that the FIR is not an Encyclopedia; that on
the date of accident, first respondent (sixth respondent herein) was the owner
of the Car; that the accident happened while the deceased was driving the Car
as a Driver under the first respondent; that as per Section 2(30) of the Motor
Vehicles Act, 1988, the first respondent (sixth respondent herein) is the owner
of the Car; that the employer-employee relationship can be inferred from the
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CMA NO.1104 OF 2022
facts and circumstances of the case; that the Commissioner after considering
the materials and evidence, passed the Award correctly; that there is no reason
to interfere with the same. Accordingly, the learned counsel prayed to dismiss
the Civil Miscellaneous Appeal.
Points for Consideration:
13.This Court has considered the submissions made on either
side and perused the materials available on record.
14.The points that arise for consideration in this appeal are as
follows:
(i) Whether the Commissioner is right in concluding
that there was employer – employee relationship
subsisting between the deceased and the first
respondent at the time of accident?
(ii)Whether the Commissioner erred in law by
determining the deceased's monthly income based
on the Minimum Wages Act, 1948 rather than the
Workmen's Compensation Act, 1923?
Discussion and Decision:
Point No.(I):
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15.The case of the petitioners is that on May 17, 2016, at about
16.45 hours, the deceased was riding the Car bearing Registration No.TN-01-
AT-2992, on GST Road. While nearing Maduranthakam BDO Office, the Car
driven by the deceased met with an accident. Due to the accident, the
deceased sustained grievous injuries and succumbed to death. In this regard,
an FIR was registered under Sections 279 and 304A of the Indian Penal Code,
1860. In the FIR, it has been stated that complaint was given by the brother of
the deceased wherein it has been stated as if the Car was owned by the
deceased. On the other hand, Ex-P.5 – Registration Certificate of the Car
stands in the name of the first respondent.
16.It is apposite to mention here that Section 2(30) of the Motor
Vehicles Act, 1988, defines 'owner' as hereunder:
“2. ...
(30)“owner” means a person in whose name a motor
vehicle stands registered, and where such person is a minor, the
guardian of such minor, and in relation to a motor vehicle which
is the subject of a hire-purchase, agreement, or an agreement of
lease or an agreement of hypothecation, the person in possession
of the vehicle under that agreement;”
16.1.Hence, there is no difficulty in arriving at a conclusion that
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the first respondent is the owner of the Car. There is no contra evidence
available on record to show that the first respondent had sold the Car to the
deceased prior to the accident. In the absence of any positive evidence to
show that the first respondent had sold the Car bearing Registration
No.TN-01-AT-2992 in favour of the deceased, considering the object of the
Workmen's Compensation Act, 1923 and the Motor Vehicles Act, 1988, this
Court is of the considered view that the deceased was a Driver working under
the first respondent. Hence, the employer – employee relationship subsisted at
the time of accident. The Commissioner after considering the materials
available on record, came to the conclusion that there was employer –
employee relationship at the time of accident. There is no reason to deviate
from the said decision. Point No.(I) is answered accordingly in favour of
the respondents 1 to 5 / petitioners 1 to 5 and against the appellant /
second respondent.
Point No.(II):
17.It is true that as per Workmen's Compensation Act, 1923,
Section 4(1-B) and the Notification made in pursuance to the same, the
monthly income has been fixed at Rs.8,000/- for a Driver. The Commissioner
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CMA NO.1104 OF 2022
fixed a sum of Rs.11,060/- per month with the aid of Minimum Wages Act,
1948. It is apposite to mention here that the Hon'ble Supreme Court in
K.Sivaraman and Others Vs. P.Sathishkumar and Others [(2020) 4 SCC
594] has held as hereunder:
“25.The 1923 Act is a social beneficial legislation and its
provisions and amendments thereto must be interpreted in a
manner so as to not deprive the employees of the benefit of the
legislation. The object of enacting the Act was to ameliorate the
hardship of economically poor employees who were exposed to
risks in work, or occupational hazards by providing a cheaper
and quicker machinery for compensating them with pecuniary
benefits. The amendments to the 1923 Act have been enacted to
further this salient purpose by either streamlining the
compensation process or enhancing the amount of compensation
payable to the employee.
26.Prior to Act 45 of 2009, by virtue of the deeming
provision in Explanation II to Section 4, the monthly wages of an
employee were capped at Rs 4000 even where an employee was
able to prove the payment of a monthly wage in excess of Rs
4,000. The legislature, in its wisdom and keeping in mind the
purpose of the 1923 Act as a social welfare legislation did not
enhance the quantum in the deeming provision, but deleted it
altogether. The amendment is in furtherance of the salient
purpose which underlies the 1923 Act of providing to all
employees compensation for accidents which occur in the course
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CMA NO.1104 OF 2022
of and arising out of employment. The objective of the
amendment is to remove a deeming cap on the monthly income of
an employee and extend to them compensation on the basis of the
actual monthly wages drawn by them. However, there is nothing
to indicate that the Legislature intended for the benefit to extend
to accidents that took place prior to the coming into force of the
amendment.”
18.This Court in Mani Vs. Rathakrishnan and Another [CMA
No.1800 of 2018 decided on 29.01.2021] held as under:
“4. . . . Regarding the fixation of income, this Court
elaborately considered the issues in C.M.A.No.897 of 2018 dated
27.01.2021 and the relevant paragraphs are extracted
hereunder:
“24.The minimum wages of Rs.8,000/- was
fixed by the Central Government with effect from
18.01.2010. If any accident occurred in the year 2013
or 2014, definitely the said amount cannot be adequate
to meet out the family expenditures of the legal heirs in
the event of death of an employee. In such
circumstances, the Courts cannot do the exercise to
assess the prevailing cost index during the relevant
point of time. However, the Courts are bound to ensure
and minimize the inequalities in the matter of grant of
compensation.
25.Thus, this Court has no hesitation in
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holding that the minimum wages notified by the
Central Government under Section 4(1B) of the Act,
1923 is applicable all over the Nation in general and
in particular, if any State fixed the minimum wages
under the provisions of the Minimum Wages Act, which
is higher than that of the minimum wages fixed by the
Central Government, then the minimum wages fixed by
the State Government, which is more beneficial is to be
adopted for the purpose of fixing the monthly income
of the employee concerned. This is to be followed,
because the employee concerned is working in the
particular State and the State has enhanced the
minimum wages to be paid to the workman. Therefore,
in the event of not adopting the minimum wages
notified by the State, which is higher than that of the
Central Government Notification, then there will be an
inequality of fixing minimum wages, in the matter of
fixing monthly income and grant of compensation.”
19.Considering the object of the Workmen's Compensation Act,
1923 and in view of dictum laid down by the Hon'ble Supreme Court in
K.Sivaraman's case (cited supra) as well as on the strength of Mani's case
(cited supra), this Court is of the considered view that the Commissioner has
rightly taken a sum of Rs.11,060/- per month as income of the deceased with
the aid of Minimum Wages Act, 1948. This Court does not find any illegality
or irregularity in the said decision. Point No.(II) is answered accordingly in
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favour of the respondents 1 to 5 / petitioners 1 to 5 and against the
appellant / second respondent.
Conclusion:
20. In view of the foregoing discussion and decisions, this Civil
Miscellaneous Appeal is dismissed. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
19 / 09 / 2024
Index : Yes
Internet : Yes
Neutral Citation : Yes
Speaking order
TK
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CMA NO.1104 OF 2022
R.SAKTHIVEL, J.
TK
To
The Commissioner of Labour – II /
Joint Commissioner of Labour – II
Chennai – 600 006.
PRE-DELIVERY JUDGMENT MADE IN
CMA NO.1104 OF 2022
19 / 09 / 2024
https://www.mhc.tn.gov.in/judis
