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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the order passed in W.C. No. 304 of 2000, on
the file of the Deputy Commissioner of Labour, Chennai. The short facts of the case are as follows:--
The applicants, who are the parents of the (deceased) Suresh, have filed the claim in W.C. No. 304 of 2000, claiming compensation from the
respondents for the death of the said Suresh in an accident arising out of and during the course of doing his duty under the employment of the
opposite parties. It was submitted that the deceased Suresh was aged 19 years and was an employee of the first opposite party and was working
as a mosaic machine labourer in the second opposite party''s house and earning a sum of Rs. 150/- per day. On 30.10.2000, at about 11.30 a.m.,
when the deceased was working in the second opposite party''s house, he sustained electric shock, while driving a mosaic machine and was
thrown against the wall. As a result, he sustained head injuries and was admitted at Chengalpattu C.M.C. Hospital, as an inpatient, but in spite of
treatment, he succumbed to his injuries on 03.10.2000. Hence, the applicants have filed the claim against the first, second and third opposite
parties.
The second opposite party in his counter has submitted that he had given the works contract to one Mr. S. Govindan and that as he had not
been made a party in the proceeding, the petition is not proper for non-joinder of necessary party. It was submitted that the deceased is not
directly employed to do the work and that the Sub Contractor, viz., the first opposite party has appointed the deceased to that work without the
consent of the main contractor and as such, the second opposite party is not liable to pay any compensation to the applicants. It was submitted that
the applicants have to prove the age and income of the deceased. It was submitted that the accident was caused only due to the negligence of the
deceased. It was submitted that as per the oral agreement between the main contractor, who is not a party to this proceeding, and the second
opposite party, for the construction of the house, if any untoward incident occurs, only the main contractor is liable to pay compensation for the
same. Hence, it was prayed to dismiss the claim as against the second opposite party.
The third opposite party, viz., S. Govindan in his counter has submitted that he was working as a mason and was not a building contractor. It
was submitted that he was not in any way involved in laying of mosaic tiles. The averments in the claim that the (deceased) Suresh had died due to
electric shock received while operating mosaic machine in the second opposite party''s house was also not admitted. It was submitted that the
(deceased) Suresh was employed as a helper and that he does not know how to operate a mosaic machine and that on the date of occurrence of
accident, the (deceased) Suresh, had tried to operate the mosaic machine, unauthorizedly and of his own accord and had sustained electric shock
and died. It was submitted that the accident was caused only due to the negligence of the (deceased) Suresh.
On the applicants side, the father of the deceased, viz., Dhanusu was examined as P.W.1 and three documents were marked as Exhibits P1 to
P3, viz., Ex.P1-F.I.R., Ex.P2-postmortem report and Ex.P3-death certificate. On the opposite party''s side, the said S. Govindan was examined
as R.W.1 and no document was marked.
The learned Deputy Commissioner of Labour had framed two issues for consideration in the case, viz.
(i) Is the deceased (Suresh) a ''workman'' as per the Workmen''s Compensation Act? Had he died in the accident arising out of and while doing
his duty in the course of employment under the opposite parties?
(ii) What is the quantum of compensation which the applicants are entitled to get? Who is liable to pay compensation?
P.W.1 had adduced evidence that his son Suresh was employed as a mosaic machine labourer by the first opposite party and that on
03.10.2000, while he was doing his duty in the second opposite party''s house, an electric wire had got entangled in the iron gate, due to which he
had sustained electric shock and died and in support of his evidence, he had marked Exs.P1 to P3.
R.W.1, S. Govindan had adduced evidence that he was working as a mason in the second opposite party''s house and that he does not know
how to lay out mosaic tiles. He deposed that he does not know the (deceased) Suresh and that he had come to know about him only after his
death. He deposed that the accident had occurred only after 25 days after he had completed his work as a mason in the second opposite party''s
house.
On scrutiny of Ex.P1, it is seen that the complaint regarding the accident had been given by P.W.1 It has been mentioned in Ex.P1 that on
03.10.2000, when the (deceased) Suresh was working along with one Viswanathan in the second opposite party''s house, and when he was
operating the mosaic machine, he had sustained an electric shock, due to which he had been thrown onto a wall and that he had sustained injuries
on his right head and died. Though it had been contended in the counter of the second opposite party that the accident had been caused only due
to negligence of the deceased, no documentary or oral evidence had been let in to prove this contention. Hence, the learned Deputy
Commissioner, on scrutiny of evidence of P.W.1 and on scrutiny of Ex.P1 and the counter of the second opposite party held that the deceased
Suresh was a workman as per the Workmen''s Compensation Act and that he had died due to electric shock sustained in an accident arising out of
and while doing his duty in the second opposite party''s house on 03.10.2000.
P.W.1 had further adduced evidence that his son was aged 19 years and earning Rs. 150/- per day. As no documentary evidence had been
marked to prove the income of the deceased, the learned Deputy Commissioner held that the notional income of the deceased could only be taken
as Rs. 2460.90 per month as per the Minimum Wages Act as per G.O. (2D) No. 34, Labour and Employment Department, dated 12.07.1996.
On scrutiny of Ex.P2, it is seen that the deceased was aged 19 years. The learned Deputy Commissioner of Labour, on adopting a multiplier of
225.22, awarded a sum of Rs. 2,77,122/- as compensation to the applicants under the head of ''loss of income'' (50/100 x 2469.90 x 225.22);
Rs. 2,500/- was awarded for funeral expenses. In total, the learned Deputy Commissioner of Labour awarded a sum of Rs. 2,79,622/- as
compensation to the applicants.
Though it was contended by the second opposite party that the third respondent was the main contractor for his house, no documentary
evidence had been marked to prove this contention. The learned Deputy Commissioner, on observing that the deceased Suresh had died in an
accident, while he was doing his work in the second opposite party''s house, held that the second opposite party, being the primary employer is
liable to pay the compensation to the applicants. The learned Deputy Commissioner of Labour directed the second opposite party to pay the
compensation of Rs. 2,79,622/- to the applicants, within 30 days from the date of receipt of its order, failing which, the second opposite party was
directed to pay the said sum together with interest at the rate of 12% per annum from the date of occurrence of accident till date of payment of
compensation.
Aggrieved by the award passed by the learned Commissioner of Labour, the second opposite party has preferred the present appeal.
The learned counsel for the appellant has contended in his appeal that the learned Deputy Commissioner of Labour failed to note that the
deceased was not an employee of the applicant and he was engaged by the contractors, i.e., the third and fourth respondents herein for
constructing the house. It was contended that the learned Deputy Commissioner failed to note that the appellant herein never paid any salary to the
deceased and the salary was given to the deceased only by the third and fourth respondents. It was contended that the learned Deputy
Commissioner failed to note that there was no employer-employee relationship between the appellant and deceased and that the deceased and the
contractor were not working for the trade or any business of the appellant. It was contended that the deceased died only due to his negligence and
that the learned Deputy Commissioner should have held the third and fourth respondents liable to pay compensation. It was contended that the
learned Deputy Commissioner erred in holding that the deceased died in the applicant''s house in the course of and out of his employment. It was
contended that the claim was excessive and hence, it was prayed to set-aside the order passed as against the appellant.
The learned counsel for the appellant has cited the following judgment in support of his contentions:--
The Dean, Agricultural College and Research Institute Vs. Smt. S. Sakilabanu, Thiru S. Mani Contractor, The Executive Engineer PWD (Private
Housing Division) and V. Sudalaimuthu, Workmen''s Compensation Act (VIII of 1923), Secs. 2(e) and 3 - Employer - Principal employer -
Immediate employer - Government Agricultural College - Dean - Construction of hostel - Entrustment to P.W.D. engineer -Independent
contractor - Sub Contractor - Workman employed by Sub-contractor -Death-Compensation-Who is liable - Dean construction work not part of
his business - Not within the Act - Not liable - Payment by contractor - Right to be reimbursed by the Sub-contractor.
The learned counsel for the applicants has submitted that the learned Deputy Commissioner of Labour had framed necessary issues and
decided the issues in an appropriate manner. The applicants had neither adduced oral evidence nor marked any documents to prove his
contentions. Further, the learned Deputy Commissioner of Labour had decided the quantum of compensation on the basis of age, income and
occupation of the deceased. It is crystal clear that the deceased was working with the appellant in his house and operated the mosaic machine on
03.10.2000 at about 11.30 a.m., and he had been electrocuted. Supporting this contention, F.I.R. and postmortem report has been marked. The
learned counsel has cited the following judgment in support of his contentions:--
K. Kamalaveni, Moorchika rep. by her mother and natural guardian, K. Rajammal and C. Karuppiah Vs. The Managing Director, Subbathal
Spinning Mills (P) Limited, P.O. John and The Official Liquidator, ""(i) Workmen''s Compensation Act, 1923 - Sections 4, 5, 12 and 2(1)(n) -
Workman"": Compensation: Entitlement: Scope of Section 12: Accident should occur in course of or for purpose of employer''s trade or business
to claim compensation: Such work should be executed through contractor: Godown was constructed in the first respondent management mills
through second respondent-contractor for constructing roof of building: Deceased engaged and in course of his employment he died: Section 12 of
Act applicable: First respondent-management mills, on whose instruction godown was constructed for purpose of their business to be construed as
principal employer though deceased was immediately employed by second respondent contractor.
On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the
impugned award of the learned Deputy Commissioner of Labour, this Court does not find any shortcomings in the conclusions arrived at regarding
occurrence of accident in the course of employment, liability and employer-employee relationship and quantum of compensation. This Court is of
the view that the contention of the appellant, in his counter, that the fourth respondent is the main contractor and that the third respondent is the
sub-contractor under him and as such, he is not liable to pay any compensation as there is no nexus between the deceased and the appellant as
employee and employer, has not been proved, through any documentary facts. This Court is of the further view that in the absence of written
contract between the appellant herein and fourth respondent, the contentions that the fourth respondent is the main contractor has not been
established. Likewise, the fourth respondent and the third respondent had not entered into any written agreement for carrying out the construction
of the appellant''s house only. If the written agreements made between all parties had been produced before this Court, only then this Court can
decide on the query raised by the appellant on the basis of general clauses contained in the agreements, but in the absence of those agreements, the
appeal does not have sufficient force to allow it. As such, the impugned order is found to be suitable for execution.
Now, the applicants are at liberty to withdraw their apportioned compensation amount, with proportionate interest thereon, lying in the credit
of W.C. No. 304 of 2000, on the file of the Deputy Commissioner of Labour, Chennai, after filing a Memo, along with a copy of this order and
after identification of the applicants by their counsel. This Court directs the learned Deputy Commissioner of Labour, Chennai to disburse the
compensation amount ASAP. In the result, the above appeal is dismissed. Consequently, the order passed in W.C. No. 304 of 2000, on the file of
the Deputy Commissioner of Labour, Chennai, dated 29.08.2003, is confirmed. There is no order as to costs.