Annamalai vs Chinnapillai and Viswanathan

P.P.S. Janarthana Raja, J.—This appeal is filed u/s 30 of the Workmen Compensation Act against the award of the learned Commissioner

for Workmen''s Compensation No. II, Chennai 600 006 made in W.C. No. 37/1999 dated 29.1.2000.

When the matter came up for admission, this appeal was admitted on the following questions of law.

(1) Whether the learned Commissioner is justified in fixing the burden of proof on the opposite party which is contrary to the well settled

proposition of law as confirmed in 1973-1-LLJ Page 387 at 406 Allahabad Full Bench?

(2) Whether the learned Commissioner is correct in holding that the claimant is an employee of the opposite parties based on Ex.A.6 alone without

any corroboration?

The brief facts arising out of the award are as under:

The first respondent/claimant was engaged as mason by the appellant herein for the purpose of construction work through the second respondent,

who is the maistry. While the claimant was engaged in the construction work in a three storied building, on 15.10.1998, he fell down due to the

collapse of saram, on which he was standing. Due to which the claimant suffered fracture on his left leg. Therefore, he filed a claim petition u/s

10(1) of the Workmen''s Compensation Act before the Deputy Commissioner of Labour-II, Chennai claiming a sum of Rs. 1,37,648/- with

interest at 12% p.a. from the date of accident. The appellant as well as the second respondent resisted the claim of the claimant. After considering

the oral and documentary evidence, the Deputy Commissioner awarded a compensation of Rs. 59,118/-. Aggrieved by that order, the appellant

has filed the present appeal.

The details of the compensation are as under:

Age factor for 35 years : 19.07.2006

Wages as per M.W.GO : Rs. 2910/- linuted to Rs. 2000/-

Percentage of disability : 25%

Compensation payable : 60/100 X 197.06 X 2000 X 25/100

= Rs. 59,118/-

Aggrieved by that award, the appellant has filed the present appeal.

The learned Counsel for the appellant submitted that the Commissioner was wrong in holding that the first respondent/claimant was an employee

of the appellant and vehemently contended that there is no employer and employee relationship and hence The appellant is not liable to pay any

compensation. He further contended that the compensation awarded by the Commissioner is without basis and justification. Therefore, the order

passed by the Commissioner is not in accordance with law and the same is liable to be set aside.

The learned Counsel for the claimant submitted that the Commissioner has considered all the facts and circumstances of the case and awarded

the compensation and has also given categorical finding that there was an employee and employer relationship. Therefore, the appellant is liable to

pay the compensation and also the award passed by the Commissioner is in accordance with law and the same has to be confirmed.

Heard the learned Counsel on either side and perused the documents on record. The claimant was examined as A.W.1. One Thiru

Balamurugan, who was his co-worker was examined as A.W.2. Dr. S.K. Raju, was examined as A.W.3. The claimant also marked Exhibits A1

to A7. Ex.A1 is the Legal notice; Ex.A2 is the Acknowledgment card (Received by Annamalai); Ex.A3 is the Viswanathan notice returned cover;

Ex.A4 is the Advocate''s reply notice for both opposite parties; Ex.A5 is the F.I.R.; Ex.A6 is the Wound Certificate and Ex.A7 is the Disability

Certificate. On behalf of the appellant, the second respondent herein-Viswanathan was examined as R.W.1 and the appellant was examined as

R.W.2. No documents were marked on the side of the appellant in support of his claim. The Commissioner has given a categorical finding that the

accident had occurred in the course of employment and awarded a compensation. It is a question of fact and also based on the valid material in the

evidence.

The learned Counsel for the appellant vehemently contended that the first respondent was not employed under the appellant and therefore, he is

not liable to pay any compensation. After considering the oral and documentary evidence, the Commissioner has come to a categorical finding that

the claimant/first respondent herein was employed as workman by the appellant herein through the second respondent herein and the

Commissioner held that the appellant is liable to pay compensation. The finding given by the Commissioner is based on valid material evidence. I

do not find any error in the finding of the Commissioner, which does not warrant any interference.

In respect of the compensation awarded by the Commissioner, the Counsel for the appellant vehemently contended that the Commissioner

awarded an exorbitant compensation without basis and justification. In respect of age of the first respondent/claimant, there is no dispute. Hence

the Commissioner was correct in fixing the age of the first respondent as 35 years old. In respect of the wages, as per G.O. No. 2(D)34 (Labour

and Employment Department) dated 12.7.96 the wage was fixed at Rs. 2910/- but restricted to Rs. 2000/-. There is no dispute regarding the

same. In respect to the percentage of disability, the learned Counsel for the appellant contended that the disability determined by the Commissioner

is on the higher side. A.W.3-Dr. S.K. Raju, the Doctor, who examined the claimant, has determined the disability at 50%. But the Commissioner

considered the evidence of Doctor and held as follows:

The doctor A.W.3 in his evidence has stated that the applicant had fractures of the lower send of the both tibia and fibula. The left ankle was

swollen and tender. The applicant could not run or climb ladders and can walk only very short distance. The flexion extension radial and lateral

rotations of the left ankle joint were restricted. In all the disability was assessed at 50% I have seen the applicant, and on discussion of the injury

with the doctor I am of the opinion that since only the left is affected and there is no amputation I assess the disability at 25%.

Taking into consideration the evidence of A.W.3, the Commissioner had fixed the disability at 25% as against the 50% disability determined by

the Doctor. Considering the disability suffered and Ex.A6 wound certificate, I am of the view that the disability fixed by the Commissioner is on the

higher side and it is reasonable to fix the disability at 20% as against the 25% determined by the Commissioner. If 20% disability is taken into

consideration, the loss of compensation can be computed as follows:

Age factor for 35 years : 19.07.2006

Wages as per M.W.GO : Rs. 2910/- linuted to Rs. 2000/-

Percentage of disability : 20%

Compensation payable : 60/100 X 197.06 X 2000 X 20/100

= Rs. 47,294/- rounded of to Rs. 48,000/-

Accordingly the claimant is entitled to a compensation of Rs. 48,000/- (Rupees Forty Eight Thousand Only) as against Rs. 59,118/- awarded by

the Commissioner.

It is stated by the learned Counsel for the appellant that the appellant has already deposited the entire award amount before filing an appeal,

and the claimant has also withdrawn 50% of the deposited amount. Under these circumstances, the claimant is permitted to withdraw the modified

compensation of Rs. 48,000/-, less the amount already withdrawn, on making proper application. The appellant is also permitted to withdraw the

balance amount on making proper application. Accordingly, the CMA is disposed of. No costs. Consequently, the connected civil miscellaneous

petition is also closed.