The Chief Engineer, Tamil Nadu Electricity Board and The Assistant Executive Engineer, Tamil Nadu Electricity Board vs M. Pandi

P.R. Shivakumar, J.—Challenging the award of the Deputy Commissioner of Labour, Madurai in his capacity as the Commissioner for

Workmen''s Compensation, Madurai dated 08.01.2000 passed in W.C. No. 348 of 1998 on his file, the opposite parties (employer) before the

Commissioner have brought forth this civil miscellaneous appeal u/s 30 of the Workmen''s Compensation Act, 1923.

The respondent herein, claiming to be a workman under the appellants, had made a claim before the Commissioner for Workmen''s

Compensation for a sum of Rs. 3,20,355/- as compensation for the alleged injuries sustained by him in an accident arising out of and in the course

of his employment under the appellants. According to the respondent/claimant, he was engaged by the Tamil Nadu Electricity Board as a helper to

work under the immediate supervision of the second appellant, whereas the first appellant happened to be the Chief Controlling Officer. On the

date of accident, viz., 23.05.1998, while he was attending on the cut point post in Aanaiyur Village, he was thrown from the said post and fell

down. Due to the fall, he sustained fracture on the left thigh, for which he received medical treatment in the Government Rajaji General Hospital,

Madurai. Despite treatment given to the respondent/claimant for the injuries sustained by him, the same resulted in permanent disability. At the time

of accident, he was aged about 27 years and was earning a sum of Rs. 1,500/- per month. With the specific contention that the

respondent/claimant was a workman under the appellants/opposite parties and he sustained the above said injuries in an accident arising out of and

in the course of his employment under the appellants, the respondent/claimant prayed for an award against the appellants herein directing them to

pay a sum of Rs. 3,20,355/- as compensation. In order to prove his claim, only one witness was examined on the side of the respondent/claimant

and four documents were marked as Exs. A-1 to A-4.

The claim of the respondent/claimant was resisted by the appellants/opposite parties by filing a written objection in which it was contended that

the respondent/claimant was only a contract worker and hence will not come under the definition of workman, entitled to the benefits of the

Workmen''s Compensation Act; that on the date of occurrence, while he was descending from the pole after completing the work, he fell down on

the ground from the mid point of the pole; that immediately thereafter he was taken to Government Rajaji General Hospital, Madurai by one

Santhanam, Line Inspector, who was the supervisor of the work at site; that the respondent/claimant, on completion of treatment, was discharged

from the hospital on 05.08.1998; that the allegation made in the claim petition as if he was again admitted on 13.08.1998 and took treatment as an

in-patient till 30.01.1999 were false and imaginary; that the petition allegations regarding the age and salary of the respondent/claimant were false

and that in any event, the amount claimed as compensation was excessive and exorbitant.

With the above said counter allegations, the appellants/opposite parties had prayed for the dismissal of the application for compensation with

costs. One witness was examined and two documents were marked as Exs. R.1 and R.2 on the side of the appellants/opposite parties.

The lower authority, viz., Commissioner for Workmen''s Compensation, after recording evidence, heard the oral submissions made on either

side, considered the materials brought on record and held that the respondent was a workman and that he was entitled to recover compensation

from the appellants/opposite parties, as he had sustained injuries in an accident arising out of and in the course of his employment under the

appellants. Holding further that the second appellant/second respondent, as his employer, was liable to pay compensation to the

respondent/claimant, the lower authority directed payment of a sum of Rs. 1,33,268/- as compensation. The said amount was directed to be paid

within 30 days from the date of award, failing which, to pay the same with an interest at the rate of 12% calculated from the date of accident till

deposit.

The legality and correctness of the above said award is challenged by the appellants/opposite parties in this civil miscellaneous appeal filed u/s

30 of the Workmen''s Compensation Act, 1923.

The arguments advanced on both sides have been heard and this Court paid its anxious considerations to the same. Records were also perused.

The opposite parties (employer) before the lower authority are the appellants in this civil miscellaneous appeal. The first and foremost contention

of the learned Counsel for the appellants is that the petitioner being a contract worker would not come under the definition of workman entitled to

the benefits of the Workmen''s Compensation Act and hence he is not entitled to claim compensation under Workmen''s Compensations Act.

The following substantial questions of law have been raised for determination in this appeal:

(i) Whether the respondent/claimant was a workman under the appellants as on the date of accident or an independent contractor?; and

(ii) Whether the finding of the Commissioner regarding wages of the respondent/claimant is perverse?

In the instant case, it is not the case of the appellants that the respondent/claimant was an independent contractor to bring about a desired

result without there being any necessity to place him under the supervision of the appellants, while carrying out the work entrusted to him. On the

other hand, what the appellants would contend is that the respondent/claimant was engaged as a contract worker. Employers cannot be allowed to

escape their liability under the Workmen''s Compensation Act by designating the workmen engaged by them as contract workers, when in fact

they are engaged for the purpose of the regular trade or business of the employers. It was held by a Division Bench of Madhya Pradesh High

Court in the case of Smt. Mangala Ben v. Dilip Motwani reported in 1998 (3) LLN 835 that in order to exclude a person from the category of

workmen two conditions were required to be proved. They are: (1) Employment was of casual nature; and (2) He was not employed for the

purpose of employers'' trade or business. It was also held that the onus was on the employer to prove those conditions. Andhra Pradesh High

Court in the case of P. Galireddy and another Vs. Chinna Ramaswamy Goud and others, expressed a similar view and observed that a workman

engaged for the purpose of trade or business of the employer, even though in casual employment, fell within the definition of workmen. Allahabad

High Court in the case of C.S. Azand University of Agriculture and Technology v. Court of W.C. Commissioner, Kanpur reported in 2003 Lab

IC 140 has also expressed a view that the employment of a person as daily waged workman and the fact that the said employment continued for a

substantial length of time could not make his employment casual. The Honourable Supreme Court in the case of Lakshminarayana Shetty Vs.

Shantha and Another, also dealt with the said question in the very same context and ultimately came to the conclusion that the claimant therein did

not fall within the definition of workmen. A preponderance of the above said judgments will make it abundantly clear that the question - ""whether a

person has been engaged to do a work?"" is a question of fact and the question - ""whether such an engagement brings him within the ambit of the

definition of workmen?"" - is a question of law.

When the above said principles are applied to the case on hand, the contention of the learned Counsel for the appellants that the

respondent/claimant was not a workman under the appellants can be rejected as untenable. It is not in dispute that though the respondent/claimant

was designated as a contract labour, he was engaged for HT and LT Line works and for erection of transformers as found in Exs. A-1, A-2 and

A-4. It is also found from Exs. A-1, A-2 and A-4 that he was regularly engaged to do the above said work for a period of 14 months. It is not the

case of the appellants that the respondent/claimant was entrusted with the work as a contractor to bring about a desired result. On the other hand,

admittedly the respondent/claimant was to work and in fact worked under the supervision of the second appellant herein. The freedom available to

an independent contractor in the execution of work was not available to the respondent/claimant. He had to work according to the directions and

under the supervision of the second respondent. When a contract labour is employed to do a work connected with the regular trade or business of

the employer, then he will definitely come under the purview of the definition of workman. Only the contractors employed to do a work not

connected with the regular trade or business of the employer will be outside the purview of the definition of workman. In this case, erection of

transformers and maintenance of HT and LT Line are the works connected with the regular trade and business of the appellants. The

respondent/claimant was engaged on a regular basis to do the said works continuously for a period of 14 months, though he was designated as a

contract labour. Hence this Court has no hesitation in coming to the conclusion that the respondent/claimant was a workman entitled to the benefits

of the workmen''s Compensation Act and that the resistance made by the appellants to his claim on the ground that he was not a workman cannot

be sustained.

The assessment of permanent disability at 52% has not been challenged. A qualified medical practitioner has also certified that the said

disability resulted in equal percentage of loss of earning capacity. Having regard to the nature of disability and the nature of work to which the

claimant was accustomed, this Court comes to the conclusion that the finding of the lower authority to the effect that the claimant suffered loss of

future earning capacity to an extent of 52% does not suffer from any infirmity or discrepancy and that there is no scope for interference with the

same in this appeal. The said finding of the lower authority is a finding of fact which cannot be even termed perverse. Under these circumstances,

the said finding has got to be confirmed.

There is no serious controversy regarding the age of the respondent/claimant. In Ex. A-2-copy of the treatment record, his age has been noted

as 26 years. The age of the respondent/claimant found in Ex. A-4-disability certificate, is 27 years. The accident took place on 23.05.1998. The

disability certificate was issued on 28.09.1999. The claimant in his application has stated that he was aged 27 years, as on the date of accident. In

fact, there is no serious controversy regarding the age of the claimant. As such, the finding of the lower authority that the claimant was aged 27

years and consequential selection of the relevant factor based on the above said finding do not suffer from any legal infirmity.

The method of assessing compensation in respect of permanent partial disability is prescribed u/s 4(1)(c) of the Workmen''s Compensation

Act, 1923. According to the said formula prescribed, the compensation for permanent total disability shall be the product of an amount equal to

60% of the monthly wages and the relevant factor. In case of permanent partial disability caused by an injury specified in Part II of Schedule I,

such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified in the Schedule as

being the percentage of loss of earning capacity caused by that injury shall be the reasonable compensation. In case of permanent partial

disablement resulting from an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total

disablement as is proportionate to the loss of earning capacity as assessed by a qualified medical practitioner shall be the reasonable compensation.

For the sake of convenience, Section 4(1)(c)(ii) is extracted here under:

in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is

proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.

The formula for assessing compensation for permanent partial disablement is as follows:

Monthly 60 relevant percentage of loss of earning capacity

wages � ---- � factor � --------------------------------------

100 100

Applying the above said formula, the compensation payable to the claimant in this case is calculated as follows:

60 52

= 1,500 � ----- � 213.57 � -----

100 100

= Rs. 99,950.76 p.

rounded to Rs. 99,951/-

For all the reasons stated above, this Court comes to the conclusion that the appellants have made out a case for reduction of the

compensation and that it is just and necessary to reduce the compensation from Rs. 1,33,268/- to Rs. 99,951/-. So far as the award of 12%

interest is concerned, it was in accordance with Section 4(A) of the Workmen''s Compensation Act, 1923 and no interference in this appeal is

warranted in respect of the award of interest. As per Section 4(A)(3), if the compensation under the workmen''s compensation Act, 1923 is not

paid within one month from the date it will due, then the Commissioner shall direct the employer to pay in addition to the amount of compensation

simple interest at the rate of 12% per annum or at such higher rate not exceeding the maximum lending rates of any scheduled Bank. Compensation

falls due in case of injuries from the date of accident. Admittedly, compensation was not paid within 30 days from the date of accident. Hence the

Commissioner could have straightaway awarded interest on the compensation amount. But, the Commissioner has incorporated only a default

clause to pay interest only in the event of failure to deposit the award amount within one month from the date of receipt of the order of the

Commissioner. In fact, the claimant alone can have grievance regarding the same. The appellants cannot have any grievance over the same.

Therefore, this Court is of the considered opinion that excepting the reduction in quantum of compensation as indicated above, in all other respects,

the award passed by the lower authority/Commissioner for Workmen''s Compensation deserves to be confirmed. Having regard to the facts and

circumstances of the case, this Court is of the further view that there shall be no order as to payment of costs.

In the result, this Civil Miscellaneous Appeal is partly allowed and the award of compensation is hereby reduced from Rs. 1,33,268/- to Rs.

99,951/-. Subject to the above said modification, in all other respects the award of the lower authority/Commissioner for Workmen''s

Compensation shall stand confirmed. There shall be no order as to costs.