The Superintending Engineer, Tamil Nadu Electricity Board and The Assistant Engineer, Rural/North Tamil Nadu Electricity Board vs Pavunammal and Others

V. Dhanapalan, J.—This Civil Miscellaneous Appeal has been filed by the Superintending Engineer, Cuddalore, Electricity Distribution

Circle, Tamil Nadu Electricity Board, Cuddalore and the Assistant Engineer, Rural/North, Tamil Nadu Electricity Board, Virudhachalam who were

the opposite parties before the Commissioner for Workmen''s Compensation-II, Chennai - 600 006 (hereinafter referred to as ""the

Commissioner"") questioning the compensation awarded in W.C. No. 105 of 1997 dated 31.12.1997 in respect of death of one Karunanidhi in an

accident arising out of and in the course of his employment on 16.12.1996 under the appellants herein.

The respondents herein who are the wife, sons and daughters of the deceased Karunanidhi have filed W.C. No. 105 of 1997 claiming

compensation of Rs. 1,47,795/-. In support of their claim, the first respondent herself who was the first applicant before the Commissioner was

examined as A.W.1 and one Palanivel was examined as A.W.2 besides marking Exs.A1 to A4. On the side of the respondents who are the

appellants herein, one S. Balasubramani, Assistant Engineer of the Tamil Nadu Electricity Board, Virudhachalam Branch was examined as R.W.1

and no document was marked on their defence.

The said Claim Petition was resisted by the appellants herein before the Commissioner stating that the deceased was not a workman as defined

under the Workmen''s Compensation Act, 1923 (hereinafter referred to as ""the Act""). The Commissioner, after considering the oral and

documentary evidence and after holding that the deceased Karunanidhi was employed by the opposite parties/appellants herein and that he met

with an accident arising out of and in the course of his employment on 16.12.1996, allowed the petition by awarding a compensation of Rs.

1,47,795/-. Aggrieved by the said order, the appellants herein have preferred the present appeal.

Heard Mr. V. Radhakrishnan, learned Counsel for the appellants and Mr. Prabhakaran for Mr. T. Dhanyakumar, learned Counsel for the

respondents.

It is the definite case of the respondents herein that deceased Karunanidhi was employed by the appellants herein as a contract labourer for the

last 15 years as on the date of the order of the Commissioner. According to them, on 16.12.1996, at 5.00 p.m., while the deceased Karunanidhi

was working under the supervision of one P. Govindarasu, Wireman, in the Low Tension Electric Pole of the Tamil Nadu Electricity Board,

Virudhachalam Branch (hereinafter referred to as ""the Board""), he was electrocuted and died of personal injuries sustained in the accident that

arose out of his employment under the appellants herein. A Criminal Case under Crime No. 908 of 1996 has been registered in the Virudhachalam

Police Station. At the time of accident, the monthly wages of the deceased was Rs. 1,500/- and he was aged 35 years. Since the accident arose

out of his employment under the appellants herein, as legal heirs of the deceased, the respondents herein are entitled to receive the compensation of

Rs. 1,47,795/- in accordance with the provisions of the Act.

On the side of the claimants/applicants before the Commissioner, post-mortem certificate, First Information Report and Complaint copy were

marked as Ex.A.1 to A.3 and to prove the age of the deceased, the school record was marked as Ex.A.4.

On the other hand, the appellants herein have filed a counter statement before the Commissioner and contended that:

a. the deceased Karunanidhi was not under emloyment of the opposite party on 16.12.1996;

b. a work was allotted to the Wireman P. Govindarasu and without the knowledge and consent of the Section Officer, the Wireman on his own

accord, took the deceased Karunanidhi to do the allotted work;

c. while attending the work, the deceased Karunanidhi died and under the said circumstances, the deceased Karunanidhi was not a workman

under the Electricity Board and he did not die while doing the work allotted to him by the Electricity Board;

d. the contract labour would not get work throughout the month and it is not correct to state that the deceased was drawing a salary of Rs. 50/-

per day and the contract labourers are paid on the nature of work basis and not on a daily wages basis and the labourer would get work for about

seven days a month under the second appellant herein and therefore, the income claimed is not correct and the age also is not correct and

e. When he is not a workman under the Electricity Board and also under the definition of the Act, the respondents herein are not entitled for any

compensation and therefore, the appellants herein prayed before the Commissioner that the Claim Petition has to be dismissed.

There is no dispute that the deceased was employed as a contract labourer under the second appellant herein and it is the case of the

respondents that the deceased was a workman within the meaning of Section 2(1)(n) of the Act which reads as under:

2(1)(n) ""Workman"" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the

purposes of the employer''s trade or business) who is--

(i) a railway servant as defined in [clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989)], not permanently employed in any

administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(a) a master, seaman or other member of the crew of a ship,

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,

(d) a person recruited for work abroad by a Company,

and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the

case may be, is registered in India, or

(ii) employed in any such capacity as is specified in Schedule II,

whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in

writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman

who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.

From a reading of the above provisions of the Act, it is made very clear that the contract labour is a workman as defined u/s 2(i)(n)(ii) of the

Act.

Further, it is provided under the Act u/s 12(1) to 12(4) as follows:

12(1) Where any person (hereinafter in this Section referred to as the principal) in the course of or for the purposes of his trade or business

contracts with any other person (hereinafter in this Section referred to as the contractor) for the execution by or under the contractor of the whole

or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman

employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed

by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references

to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by

whom he is immediately employed.

(2) Where the principal is liable to pay compensation under this Section, he shall be entitled to be indemnified by the contractor, or any other

person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay

compensation or to indemnify a principal under this Section, he shall be entitled to be indemnified by any person standing to him in the relation of a

contractor from whom the workman could have recovered compensation and all questions as to the right to and the amount of any such indemnity

shall, in default of agreement, be settled by the Commissioner.

(3) Nothing in this Section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.

(4) This Section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has

undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.

From the above, it is seen that Section 12 contemplates that for the execution by or under the contractor of the whole or any part of any work

which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay, to any workman employed in the execution of

the work, any compensation which he would have been liable to pay.

It is seen from the evidence of A.Ws.1 and 2 that the employment of the deceased Karunanidhi under the Tamil Nadu Electricity Board as

contract labourer and the accident met by him on 16.12.1996 and his death were not disputed by the opposite parties. However, it was contended

by the opposite parties before the Commissioner that the accident did not arise out of and in the course of his employment since the Wireman who

instructed the deceased to do the work had not been authorized to do the work with the assistance of the deceased.

The point for consideration before this Court is whether the death of the deceased was due to the accident which arose out of and in the

course of his employment or otherwise.

The learned Counsel for the appellants has contended that:

a. the Commissioner has erred in holding that the employment of the deceased Karunanidhi under the opposite party as contract labour was

admitted by the opposite party, but, it is not so,

b. the deceased was not authorized to do any work as a contract labour,

c. the Commissioner erred in holding that without any intermediary between the deceased and the Board, it can be deemed that he was directly

employed by the Board,

d. the Commissioner failed to note that the labourers would get work only for about seven days a month and not more than that,

e. the Commissioner cannot fix the monthly wages as Rs. 1,500/- simply because of the fact that Board has not produced vouchers before him for

the purpose of payment towards contract labourers and

f. the Commissioner erred in not applying the minimum wages formula in the instant case.

According to the learned Counsel for the appellants, the main questions for consideration are whether the Commissioner is correct in holding

that the deceased was employed by the Board at the time of his death and whether the accident occurred out of and in the course of his

employment and if so, what is the quantum of compensation to be considered.

In support of his contention, the learned Counsel for the appellants has relied on a paragraph quoted by this Court in its decision reported in

Janaki Ammal and Others Vs. Divisional Engineer, which reads as under:

In deciding whether the employee was acting within the scope of employment, the Courts resort to the old rules respecting the time and place of

the calamity, temporary stoppage of labour, responding to physical demands, eating, drinking, visiting a latrine or going from the place of

employment. To bring his case within the Compensation Act, the employee must show, as he was required to establish or under the Common

Law, that he was at the time of the injury engaged in the employer''s (?) business, or in furthering that business and was not doing something for his

own benefit or accommodation.

Further reliance has also been placed by the learned Counsel for the appellants on paragraph 10 of the decision of this Court reported in

Rajammal R. Vs. Yellow Hammer Accessories and Another, which reads as under:

Inasmuch as the deceased met with an accident in a place away from his workspot that too in a road accident, the decision of the learned

Judge is directly applicable to our case; accordingly, I hold that the deceased in our case sustained injuries resulting in his death not in the course of

and arising out of his employment. On this ground, the claim petition filed by the claimants under the Act is liable to be dismissed and the same has

been rightly dismissed by the Commissioner.

The learned Counsel for the appellants has further relied on paragraph 11 of a decision of the High Court of Andhra Pradesh reported in 2004

(4) LLN 142 (Justice Sri Dubagunta Subrahmanyam v. General Manager, Prakasham District Cooperative Milk Producers''s Union Ltd. and

Pavarulla Santhakumari) in which case the Court has held that theory of notional extension does not apply to the case and the relevant paragraph

reads as under:

In the decision in Saurashtra Salt Manufacturing Company case (vide supra), the Apex Court laid down the theory of notional extension. The

relevant passage at pages 251 and 252 reads as under:

It is well settled that when a workman is on a public road or a public place or on a public transport, he is there as any other member of the public

and is not there in the course of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is not

in the course of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the course of his employment

if he reaches the place of work or a point or an area which comes within the theory of notional extension, outside of which the employer is not

liable to pay compensation for any accident happening to him.

The theory of notional extension does not apply to the facts of the present case, as the deceased was of his own accord attending a work

unconnected to his employment under the appellant and he invited the peril in question even though the said place of accident is not far away from

the place of his work. It is, therefore clear that the appellant is not liable to pay compensation to the claimants under the provisions of Workmen''s

Compensation Act, as the deceased did not sustain any injury in any accident arising out of and in the course of employment under the appellant.

The impugned award is bad in law and is liable to be set aside.

Reliance has also been placed by the learned Counsel for the appellants on a decision of a Division Bench of this Court reported in

Madhanagopal alias Madhan Vs. Rasika Ranjani Sabha and Another, wherein, the Bench, while dealing with the question of fixing the liability in

respect of compensation either on the employer or on the contractor who engaged the workman, has held as follows:

In the case on hand, absolutely there is no dispute that this appellant had entrusted the work of painting and renovation of work to one M/s.

Selvam Brothers. It is also not in dispute that the injured workman was engaged for painting the premises of Sabha by M/s. Selvam Brothers. So,

the second respondent-Sabha is the principal employer and M/s. Selvam Brothers is the immediate employer. A person who employs others or

entrusts his work to others for execution in respect of his affairs or business could very well be proceeded in terms of Section 12. Section 12

obviously includes that the liability for compensation is ultimately of contractor or employer who engaged the workman. So far as the workman is

concerned, he is entitled to recover the same from the principal employer. The principal employer has in turn a statutory right to indemnify himself

by recovering the same from the immediate employer. In such circumstances, the learned Judge of this Court in his judgment dated 30.11.1998,

has observed as under:

No doubt, the principal employer is liable to pay the compensation awarded; but he is entitled to be indemnified by the immediate employer. For

that purpose, the presence of the immediate employer before this Court is very much essential. Any order passed in his absence may not bind him

and in the said circumstances, I feel that M/s. Selvam Brothers, who is the immediate employer is a necessary and proper party to the proceedings

and the respondents 1 and 2 have taken proceedings in his absence. I feel, to meet the ends of justice, the respondents 1 and 2 must be given an

opportunity to implead the immediate employer as a party to the proceedings, for which, the matter has got to be remanded back to the

Commissioner, Workmen''s Compensation for proper adjudication.

The learned Counsel for the appellants has lastly relied on a decision of the Supreme Court reported in Central Mine Planning and Design

Institute Ltd. Vs. Ramu Pasi and Another, wherein, while dealing with the case of casual worker, the Apex Court has held as under:

A bare reading of the said Act shows that the expression ""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 purpose of the employer''s trade or business.

The above decision of the Supreme Court has no application to the facts of the present case as the workman in the instant case is a contract

labourer who is covered by the provisions of the Act as stated supra and he is not a casual worker as in the Ramu Pasi case referred to above.

Therefore, the above decision of the Supreme Court is not applicable to the facts of the present case.

In the instant case, according to the applicants before the Commissioner, the deceased Karunanidhi was employed as a contract labourer for

the last fifteen years as on the date of the order of the Commissioner and while he was working under the supervision of Wireman named

Govindarasu, he was electrocuted and died of personal injuries sustained in the accident which arose out of his employment under the appellants

herein. A criminal case was also filed and the Exs.A1 to A4 also prove the accident. The employment of the deceased as contract labour was

admitted. However, it has not been shown as to who was the contractor at the time of the accident. The Commissioner, on going through the

evidence, has arrived at a finding that there was no intermediary between the deceased and the Board and hence, he was directly employed by the

Board for the purpose of trade or business. The Commissioner also held that the accident itself speaks about the truth and involvement of he

deceased under the opposite parties. In Ex.A.3, the Assistant Engineer of the Board, has sent a report to the Sub-Inspector of Police,

Virudhachalam Police Station in which he has mentioned the deceased as ""Assistant"" of the Wireman Govindarasu and it was not denied that the

work done by the deceased at the time of accident was allotted by the said Wireman Govindarasu. However, R.W.1 has stated that on the date of

accident, no work was allotted to the contract labourers and that department action is being taken against the said Wireman under whom the

deceased was working. It is also seen from the findings of the Commissioner that during the course of cross-examination, R.W.1 admitted that they

have not maintained any document or registers regarding the allotment of work to contract labourers. As is known, Tamil Nadu Electricity Board is

a State owned Enterprise. In a Government Undertaking, it is expected that all the necessary registers and documents should be maintained for the

work allotted and done and payment made towards the contract or any other piece rate workers and without any documentary evidence, the

opposite parties cannot argue that the particular work on a particular day has not been allotted to the deceased. Hence, in the absence of any

evidence to the contrary, the Commissioner held that the deceased Karunanidhi was employed by the opposite parties and that he met with an

accident arising out of and in the course of his employment on 16.12.1996.

Regarding the wages, the Commissioner has arrived at a finding that the deceased was earning Rs. 1,500/- per month which has been denied

by R.W.1. However, he accepted that the Electricity Board is maintaining vouchers for the purpose of payment towards the contract labourers but

the opposite parties have not produced any such vouchers before the Commissioner and in this respect also, the Commissioner has come to the

conclusion holding that the deceased was paid at the rate of Rs. 50/- per day towards his wages and his monthly income was taken as Rs. 1,500/-.

In order to prove the age of the deceased, Ex.A.4, the school record has been marked which shows the date of birth of the deceased as

01.06.1961 and the age of the deceased at the time of accident was 35 years and based on the above findings, the Tribunal has arrived at the

compensation as follows:

Age 35 years

Factor 197.06

Monthly Wages Rs. 1,500/-

Compensation payable 50/100 x 1500 x 197.06 = Rs. 1,47,795/-

In the case reported in Janaki Ammal and Others Vs. Divisional Engineer, , the deceased workman was sitting on the hand rail of the lorry

against instructions. Then, when the lorry was taking a sharp curve at mile 23/2, the deceased had let go his hold of the rails and was making funny

signs with his hands to a dumb friend who was going by the road at that time. Therefore, he acted in a negligent and careless manner and brought

about an added peril, exonerating the employer form liability to compensate. The case of the contractor was that the deceased was sitting on the

hand rail against instructions and therefore, it was held that the employer is not liable for compensation.

In the above case, while deciding whether the employee was acting within the scope of employment, it was held that it must be established whether

the employee at the time of the injury was engaged in the employer''s(?) business or in furthering that business and was not doing something for his

own benefit or accommodation. The exceptions (a), (b) and (c) mentioned in proviso to Section 3(1) of the Act would not apply where the injury

has resulted in the death of the workman. In the present case, the contract of employment has not been disputed and the work done by him was

under the supervision of the Wireman of the Electricity Board which has resulted in the death of the workman and in such a view of the matter, the

case on hand has attracted the provisions of the Act and the claimants are entitled to succeed.

In the case of Rajammal v. Yellow Hammer Accessories and Anr. reported in 2001 (1) LLJ 383, the deceased met with an accident in a place

away from the workspot and that too, in a road accident. But, in the case on hand, the accident took place on the workspot and the deceased

Karunanidhi died due to the electrocution and therefore, the decision relied on by the appellant has no relevance to the facts of the present case.

Lastly, in the decision of the Division Bench of this Court reported in Madhanagopal alias Madhan Vs. Rasika Ranjani Sabha and Another, ,

there is a reference to the scope of the provisions u/s 12 of the Act which says, where any person who employs others or entrusts his work to

others for execution in respect of his affairs or business could very well be proceeded in terms of Section 12. Section 12 obviously includes that

the liability for compensation is ultimately of contractor or employer who engaged the workman. So far as the workman is concerned, he is entitled

to recover the same from the principal employer. The principal employer has in turn a statutory right to indemnify himself by recovering the same

from the immediate employer. Even assuming that the above decision is applicable to the present case, the principal employer in this case is the

Tamil Nadu Electricity Board. Therefore, so far as the workman is concerned, he is entitled to recover the same from the principal employer and

the principal employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer. Since the contract of

employment in this case is not directly by the Electricity Board, the Contractor concerned has to be shown in order to indemnify the amount.

But, in the instant case, no evidence, either oral or documentary, has been produced before the Commissioner to show that the workman is

employed under a contractor and in the circumstances, the Commissioner has believed that in the absence of any intermediary, the workman was

employed directly under the Board and as such, I find no reason to disbelieve or interfere with the findings of the Commissioner in the absence of

any contra or conflicting evidence.

Accordingly, the order of the Commissioner made in W.C. No. 105 of 1997 taking into account the age of the deceased workman as 35

years, factor as 197.06 and the monthly wages payable as Rs. 1,500/- and thus, arriving at the compensation as Rs. 1,47,795, including the rate of

interest fixed at 12% per annum, is confirmed.

In the result, the appeal is dismissed without any order as to costs.