J.D.P. Associate No. 238, Ramakrishna Mutt Road Chennai-4 vs Smt. K. Malarkodi and Another

The appellant is the opposite party against whom an award was passed by the Commissioner for workmen''s Compensation, Chennai.

The respondents 1 and 2 are the parents of one Saravanan who died on 6.11.1994. In the course of the employment, while fixing the fibreglass

in the fourth floor he fell down and died. A sum of Rs.2,000 was given by the appellant for funeral expenses. The notice dated 4.12.1996 was

issued by the respondents to the appellant making a claim. Since the appellant did not pay the compensation of a sum of Rs.2,00,000, the petition

was filed before the Commissioner.

A counter was filed by the appellant denying the allegations stating that the appellant does not employ workmen directly but allows it to

contractors. The appellant is not aware of the said Saravanan. There was no contract of employment between the deceased Saravanan and the

appellant, the application is not maintainable. The respondents are also not dependant on the earnings of the deceased. The daily wages was also

denied and therefore, it was prayed that the application should be dismissed.

The Commissioner for Workmen''s Compensation on a consideration of the materials placed before him awarded a compensation of a sum of

Rs.2,28,540. Against this, the present C.M.A. has been filed. The learned counsel for the appellant submitted that the following substantial

questions of law should be considered:

(1) Whether the compensation to be awarded ''to the respondent without a declaration that they are dependants?

(2) Whether the claim was maintainable in view of non-joinder of the contractor?

Mr. M.R. Raghavan, learned counsel for the appellant submitted that the Workmen''s Compensation Act provides for compensation to be paid

only to the specified dependant and when the respondents did not come under that category they are not entitled to relief under the Act. He

referred to the application where there is no averment that the respondents arc dependants. He also drew attention to Form (G) which is framed

under Rule 20. This is the application for order to deposit the compensation in which one of the columns requires the applicant to state how they

are the dependants of the deceased workman. In as much as the respondents have not pleaded how they are dependants they should not have

been granted any relief. It was also his submission that when it is the specific case of the appellant that there was no direct employment, but the

deceased was only employed through a contractor, the non-joinder of the contractor was fatal to the case. He referred to Section 12 of the Act,

which provides for the principal being indemnified by the contractor for the liability incurred due to the accident. The learned counsel also referred

to the Full Bench decision of our Court reported in B.M. Habeebullah Maricar Vs. Periaswami and Others, . In view of the fact that the

respondents had not set out how they are dependants of the deceased, that the contractor was not impleadcd in the claim and the quantum was

excessive, appeal must be allowed.

Mr. O. Krishnamoorthy, learned counsel for the respondents on the other hand referred to the following decisions:

(1) Bhagwati Prasad Vs. Shri Chandramaul, ; (2) Vaidyanath Sahay Vs. Rambadan Singh and Another, ; (3) Ram Samp Gupta (dead) by L.Rs. v.

Bishun Narain Inter College and others, AIR 1987 SC 1212 and submitted that when a party asks for a relief on a clear and specific ground and

when the substantial matters relating to the claim have been set out in the pleadings the fact that a particular point was not taken in the pleadings is a

very formal technical argument and cannot succeed always. He also submitted that it is not desirable to place undue emphasis on form so long as

the subsistence of the pleadings is there. The main purpose of pleadings is to appraise the other side of the case they have to meet. When the

opponent is not taken by surprise, the failure to mention the certain fact in a particular form is really not a vital error. He also referred to the

evidence of the witnesses on behalf of the claimants, where P.W.2, one Raju had said that the deceased Saravanan only work directly under the

appellant. He also referred to the evidence of P.W. 1 and 3 who have stated that their son worked directly under the appellant and contributed his

earnings to the family. Therefore, the learned counsel submitted that the Commissioner had considered the matter correctly and the compensation

awarded was justified.

The Workmen''s Compensation Act, 1923 is a piece of social legislation, which was enacted in our country, at a time when the general

principles of Workmen''s Compensation had acquired almost universal acceptance. India was among the last of the civilized countries to enact a

legislation for this purpose. The statement of objects and reasons at the time of moving the bill recognized the necessity to alleviate the sufferings of

the Workman and their dependants, in view of the growing complexity of industry, increasing use of machinery, consequent danger to workmen

and above all the comparative poverty of the workmen themselves which requires legislation to protect the vulnerable workman. The Act has been

subsequently amended keeping in mind the change in requirements and needs of the society. The general approach of the authorities under the Act

should therefore be in tune with this purpose. The authorities should not take a too technical approach, which defeats the object of a welfare

legislation as this, so that the workman is deprived of the benefit and the families are deprived of compensation. In this background the provisions

of the Act may be examined.

Section 2(d) reads as follows:

(i) ...

(ii) ..

(iii) if wholly or in part dependant on the earnings of the workman at the time of his death

(a) ...

(b) a parent other than a widowed mother,

Therefore, as per the definition, persons in the category of Section 2(d)(i) will automatically be ""dependants"" subject to no condition, persons in

Section 2(d)(ii) will be dependants only if they are wholly dependant on the earnings of the workman at the time of his death, while persons in

Section 2(d)(iii) will be dependants if they are wholly or in part dependant on the earnings of the workman at the time of his death. Both the father

and the mother will be dependant for the purpose of the Act if they satisfy this condition. Whether they are dependant is a question of fact.

In Main Colliery Co. v. Davies 1900 AC 358 : 69 LJ QB 755 son who was 16 years, earning 8 sh. a week, lived with his parents and gave his

wages to them. His Lordship the Earl of Halsbury said,

Therefore, the burden being upon the father of the family, the father of the family in his turn obtains from the wages of those who are being

maintained by him a partial contribution to the general family fund. Why is not the father in the discharge of that burden partly dependant upon the

earnings which he receives from his children? I am not able to answer that question. It appears to me that he must be relying or dependant call it

what you please for the means by which he discharges his legal obligation upon the funds supplied to him, or partly supplied to him, by the children

who earn those funds.

Justice Mack in Ponnuswami Gounder Vs. Rengaswamy and Others, observed,

In cases of poor working families, particularly those living jointly all the earnings come into a common pool and it may often happen that the

common pool is actually quite insufficient to maintain the members at a bare standard of existence.

And further held,

It is extremely difficult to lay down any hard and fast rule about what is sufficient for the maintenance of an individual person, and to work out an

excess out of earnings available for the father and mother and other members of his family to enjoy.

Another case on the dependency of the parent is Proprietor, St. Joseph''s Automobile and Mechanical Works, Tuticorin Vs. Maria Soosai Pillai, .

In this case, whether the father of the deceased was a dependant came up for consideration. The learned Judge, after considering the case on this

point came to the conclusion that where the earnings of the deceased far from being an asset to the family were not sufficient to maintain him and

on the other hand, the father had to spend a considerable portion of his earnings, on maintaining the son, the father cannot be considered to be a

dependant. In fact this case was cited before Mack, J. who held that the case before him was different on facts. So too in the case on hand, the

facts are different. It is the evidence of the mother that the father''s earnings were insufficient, and the deceased earnings helped to maintain the

family. Therefore, on facts this case will not apply. The Full Bench decision relied on by the learned counsel for the appellant, deals with legal

representatives of dependents, so it is not applicable.

It is a sad commentary on the state of affairs that young children not even out of their teens are forced to work and not go to school, that they

also have subject their lives to risk. The inescapable reality is that in families such as Saravanan''s, each child toils hard all day so that the entire

family can eat. The parents, then, are without doubt dependant on the earnings that the child brings. But did the respondents prove that depend

atleast in part on their son''s earnings? Both the respondents have stated in their evidence that Saravanan would keep a portion of the earnings- and

give the balance to the parents. In fact, P.W.3, the mother says that her husband''s income was insufficient and that Saravanan augmented the

family income. She has also stated that the family consisted of an invalid son and an unmarried daughter. This family definitely needed the earning of

the deceased. Their evidence has not been rebutted in cross-examination.

We now come to the question of lack of pleadings. It is true that the application did not contain any averment regarding dependency. But the

appellant raised it as a defence. In the evidence the respondent have demonstrated their dependency. There is no reason to disbelieve the

evidence. In Welfare legislation, which are enacted to compensate such poor families for the death or injury caused during and in the course of

employment, the Court cannot adopt a nitpicking attitude to defeat the object of the Act. The appellant has not been taken by surprise, they knew

the statutory provisions, they raised the defence, the respondents met this with convincing evidence, so the appellant cannot complain. Therefore,

the respondents are definitely dependants within the meaning of the Act.

The next question is non-joinder of the contractor. Section 12(2) of the Act reads as follows:

Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, [or any other person

from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or

to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from

whom the '' workman could have recovered compensation, ] and all questions as to the right to and the amount of any such indemnity shall, in

default of agreement, be settled by the Commissioner.

The Report of the Select Committee stated that the workman can thus proceed against the employer or contractor and the contractor is liable

to indemnify in all cases. The Scheme of Section 12 indicates that though the liability for compensation is that of contractor, the workman is entitled

to receive it from the principal and the principal has the right of indemnity. But it is the principal who will have to prove that the deceased was

working under a particular contractor and claim that he must be indemnified by him. If Section 12(2) is read properly, it is seen that the Act intends

to secure to the workmen compensation from the principal, who may have employed contractors to do certain work, which ordinarily the principal

would have carried out through their own servants. The Section does not require the workmen or their dependants to prove, that in addition to the

principal, there was also a contractor immediately above him.

In Mulla Madina Saheb Vs. The Province of Madras, , the contractor was not a parly, the Commissioner ordered the Government the

principal to pay the compensation. The Government with held the contractor''s dues after paying the compensation, on the ground it had an

absolute right to be indemnified by the contractor. Justice Rajamannar (as he then was) rejected this contention and held,

Section 12(2) gave the Commissioner jurisdiction to decide all cases of disputed right to indemnity. The dispute between the Government and

contractor came within S. 12(2) and as ''it was the Government which claimed a right of indemnity it was for the Government and not the

contractor to ; move the Commissioner to have the right adjudicated upon under S. 12(2);

as the Government failed to obtain a decision from the Commissioner on its right of indemnity under S. 12(2) what S. 19 barred was not the suit by

the contractor but the defence of the Government based upon their right to indemnity;''

In this case the appellant has neither named the contractor nor has any claim been made regarding the right of indemnity. The section clearly

says that all questions arising out of the right to indemnity and the quantum shall be settled by the Commissioner who is authorized to do so in the

Act. Of course if there is an agreement between the parties that will govern them.

In Executive Engineer, Public Works Department, Dindigul v. V. Subbiah Naicker and another 1983 ACJ 174, the Division Bench of our

Court had held that merely because Section 12(2) of the Aet contemplates the principal being indemnified by the contractor in case the liability

fixed on the principal employer, he cannot be heard to say that no award can be passed against the principal employer. Such an argument

according to the Division Bench would run counter to this scheme of the Act.

When the Legislature has specifically provided that an award for compensation is to be passed directly against the principal employer and the

principal employer is given a right of indemnification as against the Contractor the Additional Commissioner is entitled to pass an award granting

compensation either in full or in part directly against the principal employer, on condition that the principal employer, will get indemnified by the

Contractor.

That was a case where the principal employer had claimed the right of indemnity and had assailed the award stating that when the claim for

indemnity had been made no award should be passed against the principal employer. In this case even that claim has not been made. In fact,

Section 12 has been enacted only to protect a workman to get his compensation by a speedy process. If the person who employs contractors in

his business is allowed to evade his liability on the ground that only the contractor or the intermediary should pay the compensation, then the

purpose of the Act will be defeated. It may very well turn out that the contractors are not men of means who ean pay the compensation. So while

Section 12 indicates that the liability for compensation is ultimately that of the contractor, as far as the workman is. concerned, he can recover the

compensation from the principal employer. But the principal employer in turn has the statutory right to be indemnified by the contractor. Therefore,

the claim of the respondents cannot be turned down because they did not implead the contractor. If indeed there is a contractor under whom the

workman was employed it is for the principal employer to name him and also claim the right to be indemnified. The evidence of R.W.I is that they

had a contractor called Raju who is not their employee.. At the same time, when R.W.I was cross-examined about P.W.2, one Raju, he does not

even say it is this Raju who is the contractor. He also says that there was one Raju who did painting; there was one Raju, carpenter, who is P.W.2

and he also says that he does not know whether Raju directly works or merely supervises. He admits that there is no written agreement between

P.W.2 and himself, A suggestion is also put to him that Exs-B2 & B3 were prepared for Raju, painter and it is now made out as if they have

prepared for Raju, who is P.W.2. The counter statement made by. the appellant herein does not also categorically say under which contracts the

deceased worked and that the contractor under, whom the deceased worked is liable to indemnify the appellant in respect of the amount paid as

compensation. In the absence of these materials I am unable to accept the submissions made by the learned counsel for the appellant that the

application is bad for non-joinder of the contractor. This is so, especially because it is the specific case of the respondents that the deceased

worked directly under the appellants and not under any contractor. The evidence of P.W.3 wherein the mother says that and which was pointed

out by Mr.M.R. Raghavan, cannot be construed to mean that the Raju Maistry was the contractor. In fact she denies the suggestion that her son

works under Raju Maistry.

Now we come to the quantum. As per the memo of calculation filed alongwith their application the respondents had claimed that the wages per

day is Rs.70, that the working'' days is 25 days per month. Claim per day is Rs.50. The deceased being aged below 16 years, the factor is 228.54

and therefore, the compensation is [(70 x 25 x 228.54)/2], which was rounded to a sum of Rs.2,00,000. The Commissioner without a thought

accepts this statement and says that there is no contrary evidence and he also rounds of the monthly'' wages to a sum of Rs.2000 and has

multiplied it by 30. Even as per their claim, the daily wages shall be multiplied by 25, which will only be Rs.1750. When we look at the oral

evidence of P.W.1, the father says that the deceased was earning a sum of Rs.70, whereas the evidence of P.W.3, the mother says that he was

earning Rs.55 per day; Of course, she later changes it to a sum of Rs.70. However, when we look at the evidence of P.W.2, Raju, he has stated

that a Assistant would be paid only a sum of Rs.55 per day and that the deceased was an Assistant. The learned Judge erred in concluding that

there was no contrary evidence to the claim made by P.W.I that the deceased was earning a sum of Rs.70 in the face of P.W.2''s categoric

statement. Therefore, if we calculate me compensation on this basis [(55 x 25 x 228.54)/2], 1,57,121.25, is the correct amount.

For the abovesaid reasons, I hold that the respondents are ""dependants"" and that the objection regarding the non-joinder is not sustainable,

but, however, as regards quantum the compensation awarded is not correct. The appeal is therefore, partially allowed. The respondents are

entitled for a sum of Rs. 1,57,121..25. Consequently, C.M.P.Nos. 14592 & 11954 of 2000 are closed.