Kerala Roadways Limited vs P. Thulasiraman

S. Palanivelu, J.—The allegations contained in the claim application are as follows:

1.1. The applicant is a workman employed by the opposite party as a load-man in their go-down at No. 336, Waltax Road, Chennai-3. On

04.05.1999, in the course of employment with the opposite party and arising out of his employment at about 6.00 p.m, while he was loading the

iron pipes, sustained injuries due to the fall of the iron pipe on his left leg and he suffered fracture. He was removed to the Government Stanley

Hospital, Chennai for treatment. He also took native treatment at Puttur and he is suffering from permanent disability. The Doctor has assessed the

disability at 50% which is partial. Due to the above said disability, he is suffering from 100% loss of earning power including batta. He was drawing

a sum of Rs. 3,000/- as monthly wages. The opposite party was informed about the accident. The applicant also sent a legal notice dated

30.06.1999 to the opposite party to pay compensation. Though it was received by the opposite party and acknowledged by them, no reply has

been sent. So, a sum of Rs. 2,00,000/- is claimed as compensation.

In the counter filed by the opposite party, it is averred as follows:

2.1. It is stated that the applicant has never worked under the opposite party. It is incorrect to state that while loading iron pipes, by means of fall

of an iron pipe, fracture occurred in his leg on 04.05.1999 at 6.00 p.m. It is denied that the applicant�s monthly wages was Rs. 3,000/-

including batta. The opposite party was not aware of the accident which is said to have taken place on 04.05.1999, much less involving the

accident, the applicant. Hence, the petition has to be dismissed.

After analysing the oral evidence on record and considering the other merits, the learned Workmen Compensation Commissioner No. 1,

Chennai passed an award in favour of the applicant awarding a compensation of Rs. 1,27,074/- payable by the opposite party. Hence, the

opposite party is before this Court with this appeal.

At the time of the admission of the appeal, the following substantial questions of law have been formulated:

(i) Whether the respondent/claimant was a workman employed by the appellant as defined under the Workmen�s Compensation Act? And

(ii)Whether the respondent/claimant sustained injuries during the course of employment? If so, what would be the amount of compensation?

It is the version of the respondent that he had worked under the appellant and that he sustained fracture in his leg while he was on duty on

04.05.1999 at about 6.00 p.m. in the appellant�s establishment. It is further stated that he was drawing Rs. 3,000/- per month as monthly wages

including batta. The appellant strongly denied the above said allegations and it is the case of total denial in the counter.

In the oral evidence, the respondent has deposed about the accident, his sustaining the fracture and taking treatment in Stanley Medical College,

Chennai. Ex.A1 is the copy of the Accident Register issued by the Casualty Medical Officer, Government Doctor, Stanley Hospital on

22.06.1999, in which it is recorded as stated by the injured that on 04.05.1999 at 6.00 p.m. while working at 3.30 p.m. Waltax Road, Kerala

Roadways Limited, the respondent got injury due to the fall of the iron rod. Ex.A.2 is the slip issued by the Fracture of Ortho Clinic of Stanley

Hospital, in which it is stated that the injury of left leg and ankle were due to the heavy weight falling on the left leg and that there were two

fractures. One is on the left ankle and another is in his tibia bone of left leg. Pertinent it is note that that it was issued on 04.05.1999, on the date of

accident. Ex.A.3 receipt issued by the Bone Setting Hospital, Puttur, Andhra Pradesh, shows that on 06.05.1999, he took treatment in the said

infirmary. Among the above said documents, Ex.A.2 is crucially important, which shows that he suffered injury on 04.05.1999 due to fall of heavy

weight on his left leg.

In the cross-examination of the respondent, no suggestive question was put to him to the effect that he was not workman under the

appellant�s establishment. The learned Counsel for the appellant submitted that in the attendance register the respondent�s signature was not

there and that his claim could not be brought under the purview of the Workmen Compensation Act. The appellant has not examined anybody else

to controvert the oral evidence adduced by the respondent.

In the absence of specific denial in his cross-examination, it would lead the Court to presume that he was a workman under the appellant, on the

strength of the materials available from his chief examination. As a result, an irresistible conclusion can be arrived that the respondent worked under

the appellant and while he was on duty i.e. loading an iron pipes in a lorry, an iron pipe fell on his leg and he suffered fracture.

The learned Counsel for the respondent at the time of arguments would contend that the Commissioner had concluded on the basis of the factual

aspects and no substantial questions of law could be inferred in this case. Resisting the afore-said contention, the learned Counsel for the appellant

would argue that when the management denies that a particular individual was not a workman and in case the Workmen Compensation

Commissioner decides that he is a workman, then his decision of the Workmen Compensation Commissioner whether he was a workman or not,

is a question of law. As such, it would constitute a substantial question of law and the same to be answered by this Court.

In support of his contention, he garnered support from a decision of this Court reported in R. Nallayan Vs. Chinna Irusan, , in which this Court

has held that a finding of the Commissioner for Workmen�s Compensation that the appellant is a worker cannot be said to be mere question of

fact and a question of law. In a decision rendered by Karnataka High Court in United India Insurance Company Limited, Bangalore Vs.

Sridhargadde Basappa and Another, , the learned Judge has observed that whether the finding of the Commissioner regarding the employer and

employee relationship involves a substantial question of law and the appeal against the findings is maintainable, for which, it was answered in

affirmative by the Court and it is the finding that the question goes to the very root of the claim. As per the decisions afore-noted, the fact of a

decision with regard to the relationship of employer and employee relationship is a question of law and the appeal is maintainable before this Court.

As far as the burden of proof is concerned, the contention of the learned Counsel for the appellant is that it is on the workman that in case, if

his evidence does not satisfy the Court, it has to be brushed aside. He placed reliance upon a decision in AIR 1964 P&H 315, Smt. Raj Rani

W/o. Jagdev Dutt and Anr. v. Firm Narsing Das Mela Ram and Anr. in which it is held that in order to exclude a person from the category of a

workman entitled to compensation under the Act, it has to be shown that he was in casual employment and was not engaged in the trade or

business often by the employer. The Division Bench of Jharkhand High Court in a judgment reported in Director, Xavier Institute of Social Service,

Ranchi Vs. Mostt. Etwari Devi and Others, , took the view that the responsibility of establishing that the deceased was a workman employed for

trade or business of his employer wholly lies on the claimants and since the claimant/wife has failed to prove that her husband was a workman, it

has to be held that he was not a workman and the claimant was not entitled to claim compensation.

This Court is also of the identical view that it is for the claimants to establish that the relationship of employer and employee is subsisting

between them as per the decision reported in Rajammal R. Vs. Yellow Hammer Accessories and Another, The Supreme Court in a decision

reported in 2008 (2) CCC 297 (SC), Om Prakash Batish v. Ranjit @ Ranbir Kaur and Ors., observed in para 23, that the workman in the

present case was employed for a limited period for carrying out repair works in a residential house. The same does not, thus, answer the

description of a ""workman"" as contained in the provisions of the Act. In yet another ruling of the Apex Court reported in 2006 SCC 244, Central

Mine Planning & Design Institute Ltd, the Supreme Court has taken a view that a bare reading of the Workmen''s Compensation Act shows that

the expression of ''Workman'' as defined in the Act does not cover a casual worker. There was also no definite material adduced to show that the

claimant was employed for the purposes of the employer�s trade or business.

By citing the above said authorities, the appellant''s side appears to have adopted two limbs of contention. On the one hand, it is for the

workman to establish that the employer and employee relationship is existing between the parties and on the other, the respondent was a casual

worker. In this context, the defence raised by the appellant in the counter has to be looked into. Right from the inception, it has been the case of

total denial on the part of the appellant and in the proceedings before the Commissioner, no plea was raised by the appellant that either the

respondent was a workman for a limited period or was he a casual worker. But before this Court alone, the appellant�s side has relied upon the

above said ruling as if they treat the respondent as a casual worker.

Be that as it may, as for the onus of proving that he is the workman under the appellant, the respondent has proved to the satisfaction of the

Court that he was a ''workman'' under the appellant by adducing oral evidence and producing Ex.A.2 document. Failure on the part of the

appellant�s side to let any contra evidence also adds advantage to the case of the respondent.

Having regard to the circumstances, the inevitable end-product could be, the respondent is a workman under the appellant and the upshot of

the authority below need not be upset by this Court. Accordingly, the substantial questions of law are answered. The award impugned does not

suffer from any factual nor legal infirmity which deserves for confirmation and accordingly, it is confirmed. The appeal is devoid of merits, which

has to face dismissal.

In fine, the Civil Miscellaneous Appeal is dismissed. Consequently, connected M.P. is closed. No costs. If the respondent has withdrawn any

amount from the deposit, there shall not be any refund by him.