Assistant Director, Madahalli Large Scale Silk Farm and Another vs Chikkuthayamma C.

N. Kirubakaran, J.—The Appeal has been preferred against the award passed under Workmen''s Compensation Act, awarding a sum of

Rs. 1,48,004.01 towards the death of one Mr. C. Basuvanna. The case of the legal heirs of the deceased is that he was employed in the appellant

department as daily wager from August 15, 1986 continuously. On May 31, 1996, the higher officials asked the deceased to repair the electric

connection in the transformer and when attempted to repair as per the direction he was electrocuted and he was taken to Government Hospital

Thalavadi then to Coimbatore Medical College and succumbed to the injuries on June 10,1996. The claim of the respondent is that he was earning

about Rs. 37/- per day and a sum of Rs. 1, 110/- per month. Hence, they made claim under the Workmen''s Compensation Act to the tune of Rs.

5 Lakhs.

The appellant contested the claim petition contending that the deceased was employed as a daily wager and there was no relationship of

employer-employee between the deceased and the department and that the deceased committed suicide on his own due to family problems and

that he did not attend electrical problem as per the instructions of the higher officials as he did not possess the qualification to do the electrical

work.

On appreciation of the pleading and evidence the Commissioner came to the conclusion that the deceased was an employee and he died during

employment and out of employment on June 10, 1996. Based on those conclusions a sum of Rs. 1,48,004.01 was awarded by the Commissioner

and the said award is impugned before this Court. At the time of admission the following substantial questions of law were framed:

(a) Whether the Commissioner was right in holding that the death was due to the employment assigned to him when he had not been engaged as an

Electrician to undertake any repair in the transformer?

(b) Whether a coolie engaged in agricultural seasonal activities can be a workman within the definition of Section 2(n) of the Workmen

Compensation Act?

Ms. Bhavani Subburayan, learned Special Government Pleader (CS) submitted the deceased was not a regular employee and he was employed

as a daily wager in the Department and therefore there is no employer-employee relationship hence the claim petition under Workmen''s

Compensation Act is not maintainable.

Section 2(n) of the Workmen''s Compensation Act 1923 is extracted as follows:

(n) ""workman"" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the

purposes of the employer''s trade or business) who is:

(i) a railway servant as defined in Clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any

administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a company,

and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the

case may be is registered in India, or

(ii) employed in any such capacity as is specified in Schedule 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.

As per the said definition the deceased would come under the category of workman provision as per the admission made by the appellants in para

2 of the counter statement filed before the Commissioner that he was employed as casual labour, whenever there was necessity for workers. As

far the substantial questions of law (B) is concerned, the Tribunal based on evidence of R.W. 1 Malaiarasan came to the conclusion that the

deceased was employed under the appellant. The findings are based on oral evidence of the witness of the Appellant Department. In view of that

the question of law (B) is answered against the appellant.

As far as the question of law (A) is concerned, it is the case of the appellant that the deceased on his own touched the live wire with intention to

commit suicide due to family problems. Even though there is a contention in paragraph 4 of the counter statement to that effect, no evidence was

adduced on the side of the appellant to that effect. The accident occurred on May 31,1996 and he died on June 10,1996. Due to the accident

there should have been a complaint to the police authorities and FIR registered filed does not state that the employee committed suicide. If the case

was closed by the police authorities on November 16, 1996 as stated in para 4 of the counter statement nothing prevented the appellants from

summoning the police officials or closure report to speak about the alleged suicide. When the appellants specifically took a stand in the counter

statement that the deceased in an attempt to commit suicide touched the live electric wire, it is burden cast on the appellants to prove the case by

oral as well as documentary evidence. Otherwise it would remain as allegation only. In this case the version of the appellants remained as allegation

only and no attempt was made by the appellants to prove the said allegation. Hence, the theory of suicide put forth by the appellant is liable to be

rejected and accordingly, it is rejected.

Admittedly the deceased was a daily wager. When there was a problem in the electrical wiring he was asked to attend the same as he had to

obey the commands of the higher officials otherwise his job itself would be at stake. It is too late in the day for the appellant department to contend

that no higher official directed him to attend the electric repair work in the transformer. It is normal practice when there is an electrical problems in

the office, the lower employees would be asked to attend such work. In this case also there should have been a direction to do the repair,

otherwise there was no necessity for the employer to climb over the transformer. As stated above during the employment only the deceased got

electrocuted.

Moreover, the appellant cannot be allowed to contend that the deceased should not have attempted to repair the transformer as he was not

qualified to be an electrician. Irrespective of the qualification, to oblige the officials, the lower employees are asked to do the urgent works like

electrical repairs. During emergency situation, nobody would go in search of electrician. Therefore, the contention of the appellant that the

deceased was not a qualified electrician to repair the work is liable to be rejected. The Commissioner rightly found that the deceased during the

course of and out of employment died in the accident and accordingly, awarded a sum of Rs. 1,48,004.01/-. In view of that the question of law

(A) is also answered against the appellant.

As stated above the Commissioner took into consideration the Government Order dated March 28,1996 rightly calculated the monthly income

taking into the age of the deceased 27 as per Exhibit P-2 postmortem report and arrived at the compensation. 12% was awarded as interest by

the commissioner rightly on the same does not warrant any interference.

The learned Counsel for the respondent submits that only a sum of Rs. 1,48,004/- alone was allowed to be drawn by the respondents. In view

of that the commissioner is directed to pay the entire balance of amount along with the interest within a period of two weeks from the date of

receipt of a copy of this order or on production of a copy by the respondent whichever is earlier.

Accordingly, the appeal is dismissed. There will be no order as to costs.