Ramasamy vs Smt. Karuppayee Ammal

P.K. Sethuraman, J.—The opposite party is the appellant. The appeal is against the order passed by the Additional Commissioner for Workman''s Compensation, Coimbatore, in the application filed by the respondent herein, under S.10 of the Workman''s Compensation Act, 1923, claiming compensation for the death of her son Murugesan while he was working under the opposite party on 4th April, 1979, by an accident during and in the course of employment under the opposite party. The application was filed stating that on 4-4-1979 her son Murugesan who was working as electric mechanic was taken by the opposite party to Sankagiri to repair the pumpset in the well of opposite party''s land and while he was so working, he fell into the well and died and since her son died in the accident during and in the course of employment of the opposite party, she claimed Rs. 19,200 as compensation. The opposite party in the counter denying the allegation made in the petition and the employment of Murugesan contended that Murugesan was not employed by him and the deceased was not getting a monthly wages of Rs. 300 and he is not liable to pay any compensation. The Additional Commissioner for Workmen''s Compensation framed the following issues:--

Whether the deceased, Murugesan was a workman under S. 2 (1)(n) of the Workmen''s Compensation Act read with schedule II to workmen''s compensation Act?

Whether the accident arose out of and during the course of his employment?

What is the compensation payable?

The applicant, one Thiru Rangaswamy, Thiru Zakkiria, Head Constable, Sankagiri Police Station, and Thiru Ramakrishnan Sub Inspector of Police, Sankagiri were examined as A.Ws.1 to 4. The opposite party was examined as R.W.1. The F.I.R. of the case, inquest report and other documents were also marked before the Additional Commissioner for Workmen''s Compensation as, P.1 to P.4. After considering the evidence on record the Additional Commissioner for Workmen''s Compensation under issue No. 1 held that the deceased Murugesan was a workman under the opposite party as defined under S. 2(1) (n) of the Workmen''s Compensation Act and the accident arose out of and during the course of employment. Under issue No. 3 the authority, in view of the fact that there was no record to establish the wages of the deceased, fixed the daily wages of the deceased as found in minimum Wages Act at Rs. 3-75 per day. Accordingly, the petitioner was held to be entitled to Rs. 11,520. The petition was allowed directing the opposite party to pay the said sum.

Aggrieved against the said order, the opposite party has come forward with this appeal. In this appeal, the appellant has contended that the order passed by the lower authority is wrong and the lower authority wrongly held that the deceased was an employee under the appellant without proper appreciation of the evidence of P.W.2 and the lower authority also erred in fixing the daily wages at Rs. 3-75 and it has been prayed that the order passed by the Additional Commissioner for Workmen''s Compensation has to be set aside.

The point that arises for consideration in this appeal is as to whether the deceased Murugesan was not under the employment of the opposite party and so the appellant is not liable to pay compensation as ordered by the Additional Commissioner for Workmen''s Compensation. The fact that the deceased Murugesan went to the well of the appellant to attend the repairs in the electric motor pumpset is not in dispute. The contention of the learned counsel for the appellant is that Murugesan was an employee under Thiru Rangasamy examined as P.W.2 and the deceased was sent by Rangasamy only to attend the repairs and therefore, there is no contract of '' employment between the opposite party and the deceased workman and under such circumstances the appellant is not liable to pay the compensation.

Rangasamy who had been examined as P.W.2 is the brother-in-law of the deceased workman, and he has a shop known as Rajendra Electrical Works in Sankagiri. He has depose that the deceased Murugesan was also a mechanic and he used to attend the repairs in the pumpset and he was getting about Rs. 400 per mensem. He has also stated opposite party and on that day he had gone to Erode., and that later he came to know about the death of his brother-in-law and subsequently he went there. During cross-examination, he has categorically denied the suggestion put to him that the deceased Murugesan was under his employment. It is seen that there was a report given by the opposite party in the Police Station at Sankagiri and a case had been registered recording the death of Murugesan and the connected records and the complaint given by the opposite party in the police station and the report by the Sub-Inspector of Police to the Tahsildar have been marked in this case and the Sub Inspector also had been examined. In the report given by the opposite party marked as Ex.P1, there is no mention about the opposite party taking Murugesan as directed by Rangasamy. On the other hand, it is only shown that Murugesan was brought from the shop of Ranganathan, a mechanic. It appears, during the investigation in the statement recorded by the Sub-Inspector, the opposite party is shown to have stated that he went to Rangasamy and Rangasamy sent Murugesan. Even accepting such a statement, it cannot be stated that Murugesan was under the employment of Rangasamy and therefore, there is no contract of employment between the opposite party and the deceased Murugesan.

Having regard to the nature of the work it may be stated that Murugesan had gone there for the specific purpose of attending to the repairs in the motor pumpset belonging to the opposite party. In this connection, it has to be pointed as per the definition of a workman as defined under S. 2 (1)(n) of the Workmen''s Compensation Act, both the conditions namely, 1. The employment must have been of casual nature and (2) must have been employed otherwise than for a purpose of employer''s trade or business have to concur and in determining whether the employment of a person was of casual nature the onus is on the employer to prove that the kind of service done by the person was of casual nature. But in this connection it is also to be pointed out that even workman employed on daily wages have been held to be workman under the definition of S. 2(1) (n) of the Act. In the decision reported in Madanlal Vs. Mangali, , a daily wage earner was held to be workman within the definition of S. 2(1) (n) of the Act and while discussing the scope of the definition, it has been pointed out that the word ''and'' occurring in the definition of ''workman'' has been used conjunctively and, therefore, in order to take out a labourer from the category of a workman, both the following conditions must be satisfied, viz., (1) that the employment must be casual and (2) that the employment must be otherwise than in the employer''s trade or business. Absence of any one of these conditions will not result in taking out a labourer from the category of a workman. In the decision reported in T.N. Sitharama Reddiar v. A. Ayyasami Gounder Vol. IX Factories Law Journal (1955-56) 101, our High Court has held that to exclude a person from the definition of a ''workman'' as defined in S. 2 (1)(n) of the Workmen''s compensation Act both the conditions referred to above have to be considered. In an unreported decision of this Court, rendered by Sengottuvelan, J., (AAO.100 of 1981, Judgment dated 24-6-1983) under similar facts of the present case, it has been held that the workman concerned in the case was entitled to compensation and he comes within the definition of S. 2(1)(n) of the Act. Thus, having regard to the evidence available on record and the principles laid down in the decisions referred to above, I find that the order passed by the lower authority granting compensation is a proper one. With regard to the claim also, the lower authority not accepting the contention put forward by the appellant has fixed the compensation on the basis of daily wages. Therefore, the compensation awarded cannot also be said to be excessive. I find the point accordingly against the appellant. In the result the appeal is dismissed with costs.