Ramesh Kumar vs Mrs. Shanthi

Mr. B. Manohar, J.—Appellants are the owners of the building, challenging the legality and correctness of the judgment and order dated 7-3-2011 made in WCA/FC/CR/12/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, Bangalore (hereinafter referred to as ''the WCC'' for short) filed this appeal.

The respondents 1 to 5 herein filed a claim petition contending that husband of the first claimant and father of claimants 2 to 5 deceased Manjunath was working as a painter on daily wages under Respondent No. 1. He was getting daily wages of Rs. 180/-. On 19-02-2001, as per the instructions of the owner of the building, while he was painting the 2nd floor of the building, he fell down and sustained grievous injuries. Subsequently succumbed to the same. The accident occurred during the course and out of employment. Though the deceased had requested the owner of the building to provide safety belt, scaffolding and take certain precautionary measures to carry out the painting work, the owner of the building had not taken any precautionary steps. In view of that, while the deceased was painting the 2nd floor standing on the parapet wall, at about 9.30 a.m., be fell from 30 feet height. The police have registered Crime No. 42/2001 and C.C. No. 16339/2001 against the owner of the building. Due to the death of the deceased, the family has lost the bread earner and hence sought for compensation of Rs. 8,00,000/- with interest at 18% p.a.

In response to the notice issued by the WCC, though the second respondent was served with notice, he remained unrepresented. The first respondent entered appearance and filed written statement denying the entire averments made in the claim petition and also contended that he his not the owner of the building and he has not appointed the deceased or the second respondent Thangavelu for the purpose of painting the building. He also denied the relationship of master and servant between him and the deceased. Further he was not paying daily wages to the deceased. Apart from that he had not taken any work of repairing or painting of the building, hence the question of engaging the deceased or the second respondent as contractor does not arise and sought for dismissal of the claim petition.

The 3rd respondent owner of the building filed written statement denying the relationship of master and servant between the deceased and the owner of the building. He had not taken up any repairing or painting work to the said building. He further contended that the claimants hove not produced any documents to show that the deceased was working under the 3rd respondent for a period of 3 years. Hence, sought for dismissal of the claim petition.

On the basis of pleadings of the parties, the WCC framed necessary issues.

The claimants in order to prove their case, first claimant got herself examined as P.W.1 and got marked the documents as Ex.P1 to Ex.P9. On behalf of the respondents, the first respondent was examined as R.W.1 and got marked the documents as Ex.R1 to Ex.R4.

The WCC, after appreciating the oral and documentary evidence let in by the parties and taking into consideration spot mahazar, sketch, copy of the complaint and charge sheet held that while the deceased was working as a painter in the building belonging to respondents 1 and 3, he fell down and died during the course and out of employment. The claimants are the wife and children of the deceased and they are entitled for compensation. With regard to quantum of compensation is concerned, taking the minimum wages being paid to the painters at the relevant point of time, the WCC had taken the income of the deceased as Rs. 74.83 paisa per day, taking 50% thereof, applying the relevant factor 207.98, since the deceased was aged about 30 years as on the date of death awarded a sum of Rs.2,02,321/- with interest at the rate of 7.5% p.a. from the date of filing of the claim petition to the date of judgment and order and at the rate of 12% p.a. from the date of the judgment and order. Since the accident occurred during the course and out of employment, the liability was fastened on the 3rd respondent to compensate the claimants. The respondents 1 and 3 being aggrieved by the judgment and order passed by the WCC fastening liability on 3rd respondent to compensate the claimants have filed this appeal.

Sri. Rajeshwara, learned counsel appearing for the appellants contended that the judgment and order passed by the WCC is contrary to law. The specific case set up by the appellants is that there is no relationship of master and servant between the deceased as well as the appellants. Further, they have not undertaken any work of repairing or painting the building belonging to them nor had they engaged Thangavelu as a contractor to do painting work. In order to grant compensation under the Workmen''s Compensation Act, the deceased must fall within the meaning of Workman'' under Section 2(1)(n) of the Employees Compensation Act, but no document has been produced to show that the deceased was working under them and to prove that he was engaged by the appellants to work as a painter. Further, no document has been produced to show that they were paying the deceased daily wage of Rs. 180/- and no independent witness has been examined to prove that there is relationship of master and servant between the deceased and the appellants herein. Though the accident occurred on 19-2-2001, the complaint has been lodged on 13-3-2001. There is inordinate delay in lodging the complaint and also filing the claim petition. Hence, sought for setting aside the judgment and order passed by the WCC.

On the other hand, Sri. G. Kiran, learned counsel appearing for Respondent Nos. 1 to 5 argued in support of the judgment and order passed by the WCC and contended that while the deceased was performing the painting work, he fell down from the building belonging to the appellants. The watchman of the building one Krishnamurthy made a statement before the Police regarding occurrence of the accident and death of the deceased. Further one of the co-employees Sharavana lodged a complaint on 13-3-2001. The co-employee is an appropriate person who has seen the occurrence of the accident. The WCC taking into consideration oral and documentary evidence let in by the parties held that the deceased was working as a painter in the building belonging to the 3rd respondent and passed judgment and order in accordance with the Employees Compensation Act. There is no infirmity or irregularity in the judgment and order passed by the WCC and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the panties and perused the judgment and order, oral and documentary evidence adduced by the parties and other relevant records.

Having heard the learned counsel for the parties, the only issue that arises for consideration in this appeal is whether the judgment and order passed by the WCC is in accordance with law?

The case of the claimants is that the deceased Manjunath was working as a painter. On 19-2-2001, he was engaged by the 3rd respondent to do the painting work to the building belonging to him. However, no precautionary measures were adopted or safety belt was provided to the deceased while painting the second floor of the budding. At about 10.00 a.m., while the deceased was painting outside of the building standing on the parapet wall, he fell from 30 feet height and succumbed to injuries. On telephonic message to Subramanyanagara Police Station, the police official Govindappa went to the spot and found the dead body. Thereafter, he informed the control room and also lodged a complaint before the jurisdictional police stating that he found a dead body on the 19th Main Road, in front of Rajesh Novelties. He was informed that some unknown vehicle dashed against the deceased and he died on the spot. The body was shifted to Victoria Hospital. Further, on 13-3-2001, one Sharavana who claims to be working along with the deceased in the said building lodged a complaint stating that while he and the deceased were working as painters in the building belonging to Keval Chand Jain, the deceased standing on the parapet wall on the second floor of the building was painting outside the building and he fell from 30 feet height and died on the spot at about 10.30 a.m. The owner of the building had instructed him not to inform anything about the accident. Hence he did not inform anybody regarding the incident and requested the police to take action after lodging the complaint. On the basis of the said complaint, charge sheet was filed against the owner of the building, criminal case was lodged which ended in acquittal.

The records further disclose that except the complaint lodged by Sharavana on 13-3-2001 with regard to alleged death of Manjunath while he was performing the work as a painter, no document has been produced to substantiate the same. If Snaravana happens to be the eye-witness for the occurrence of the accident, nothing prevented him to lodge a complaint before the jurisdictional police immediately thereafter. The Police records clearly disclose that on telephonic communication, the Subramanyanagar Police went to the spot and found the dead body and after recording the statement of the neighbours, shifted the body to Victoria hospital. If Sharavana was really working as co-employee, nothing prevented him to inform the police regarding the accident, why he kept quite till 13-3-2001 and lodged a complaint before the jurisdictional police thereafter is not made known. The specific case of the appellants is that they have not engaged Thangavelu to do painting work of the building, whether Thangavelu appointed the deceased for painting work is not made clear. Though, Thangavelu was served with notice, he remained unrepresented. Further, one Krishnamurthy who claims to be the Watchman of the building made a statement before the Police that while painting the building; the deceased fell down from the 2nd floor of the building. However, he was not examined as one of the witnesses to prove the occurrence of accident. Except self-assertion made by the claimants stating that the deceased was working as a painter, no document has been produced to substantiate the same. The WCC has passed the impugned judgment and order solely on the basis of probabilities of the case, without examining the documents produced before the Police. Ex.R1-complaint lodged by the police constable Govindappa clearly disclose that immediately after the accident, on telephonic communication on 19-02-2001 he went to the spot and found the dead body near foot path. The neighbours informed him that some unknown vehicle dashed against the deceased. None of the neighbours stated anything about the death of the deceased as fall from the building during the course of painting the walls of the building. The accident occurred at about 10.00 a.m., at that time, large number of people will be moving on the road. Nobody has complained with regard to occurrence of the accident and death of the deceased. On the basis of presumption, it is difficult to hold that the deceased was working as a painter; while painting the building belonging to the appellants, he fell down and died on the spot. The judgment and order passed by the WCC without taking into consideration the relevant records and only on the basis of statement of Krishnamurthy as well as the complaint lodged by Sharavana on 13-3-2001 holding that the deceased was working in the building belonging to the appellants and while painting, he fell down and sustained grievous injuries and succumbed to the same is contrary to law. Except the statement of the interested witnesses i.e. Krishnamurthy and Sharavana, no other independent witnesses have been examined in support of the case of the claimants. Hence, the judgment and order passed by the WCC cannot be sustained. Accordingly, I pass the following:

ORDER

The appeal is. allowed. The judgment and order dated 07-03-2011 made in WCA/FC/CR-12/2007 passed by the Labour Officer and Commissioner for Workmen''s Compensation, sub-Division-I, Bangalore is hereby set aside.

The amount in deposit is directed to be refunded to the appellants.