This Civil Miscellaneous Appeal has been filed against the award, dated 11.05.2006, made in W.C.No.4 of 2005, by the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli.
2.The case of the claimant-S.Arumugam is that he worked as an Electrician-cum-Maintenance Worker under the respondents therein/Kalyana Mandapam and on 04.08.2004, he met with an accidental fall and sustained injuries. The claimant had submitted that on 04.08.2004, around 06.30 p.m., while he was trying to fit a tube light in the front side of the said Kalyana Mandapam, fell down from 6 feet height. Due to that, he sustained fracture in his left thigh bone (femur) and the claimant was taken nearby Ramanujam Poly Clinic, Ambasamudram and got discharged on 05.08.2004 and on the same day, he was admitted as an inpatient at Venkateswara Clinic, wherein, an operation was done on 07.08.2004 and a metal plate was fixed in his left femur. On 17.08.2004, he was discharged from the hospital and till the filing of the application before the Deputy Commissioner of Labour, he was taking treatment and due to the injury, the claimant incurred loss of salary and he was also permanently disabled, due to the accidental fall which occurred during the course of employment and stated that he received a sum of Rs.3,000/ per month as a salary and the disability was assessed at 40% and loss of income and claimed compensation of Rs.1,00,526.40/- with interest at 12% per annum.
3.The respondents-employers therein filed a counter-affidavit and had denied the allegation in the petition and stated that the claimant was not at all working as a workman in the concerned Mandapam and they also denied the occurrence of accident and further treatment was also denied by the respondent. It is further stated that they denied the salary given and they are not liable to pay compensation. In paragraph No.7 of the counter- affidavit, the respondents-employer had stated that the claimant was not working under them, but he was working in a coffee depot under the second respondent in the claim petition, where the claimant worked till 31.10.2002 and after receiving bonus and salary, he left the concerned depot and they were not aware where he was working at the time of the accident. It is further stated that the first respondent therein used to engage temporary workers, as and when any function taken place in the Kalyana Mandapam. They denied their liability, since the claimant was not working with them and prayed for dismissal of the claim petition.
4.After receiving the counter, the same was taken up for final disposal and the claimant submitted that the second respondent-Lakshmi has passed away and her name has to be deleted and that petition was allowed by the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli. Only after the intervention of the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli, three documents were marked on the side of the first respondent.
5.In the cross-examination, the respondent-employer had deposed that they did not maintain any yearly book register and they never maintained any of the account books and he has also not produced any documents regarding the maintenance of the lodge, since the claimant was not working in the lodge.
6.Before the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli, on the side of the claimant, three witnesses viz., P.W.1 to P.W.3 were examined and six documents viz., Ex.P.1-report of the Ramanujam Hospital, Ambasamudram, Ex.P.2-report of the Venkateswara Hospital, Tirunelveli, Ex.P.3-xerox copy of the legal notice issued to the second respondent on 08.10.2004, Ex.P.4-proof of Acknowledgment card received by the second respondent, Ex.P.5-reply given by the second respondent and Ex.P.6-disability certificate were marked and on the side of the first respondent, one witness viz., R.W.1 was examined and three documents viz., Ex.R.1-ledger for the year 2003-2004, Ex.R.2-day book for the year 2003-2004 and Ex.R.3-stock register for the year 1996.
7.After the trial, the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli, has come to the conclusion that the case of the claimant was proved and there was an employer-employee relationship between them and awarded a sum of Rs. 70,176/-.
8.The learned counsel for the appellant submitted that he was questioning the accident itself and there is no employer-employee relationship with the parties, but admitted that the respondent/claimant worked in Indian coffee depot, which belongs to his wife and he left the job on 31.10.2002, but the alleged accident took place on 04.08.2004. Whereas P.W.2 clearly deposed that P.W.1-claimant was working in the Kalyana Mandapam at the time of accident, even though P.W.2 left the job around January, 2004. The appellant/respondent would contend in the cross- examination that P.W.2 had stated that he was not able to remember the name of the Kalyana Mandapam, where he was working and hence his evidence should not be relied upon. The non-filing of any complaint about the accident or to the Doctor regarding the manner of accident, the same should be taken as the accident did not take place in their concern ie., Kalyana Mandapam and claim notice was sent to the second respondent therein (his wife) and not to the appellant herein would show that he was not employed in the Kalyana Mandapam. The appellant also marked documents Exs.R.1 to R.3 to prove that the claimant was not his employee and no eye witness was examined and Workman Compensation Act will not apply to this case, since the claimant is not a workman as defined in the Shop and Establishment Act.
9.The learned counsel for the respondent/claimant reiterated the stand taken before the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli.
10.Heard the learned counsel for the appellant and the learned counsel for the respondent.
11.From the perusal of the materials available, it is seen that the claimant-Arumugam has filed the claim petition claiming a sum of Rs.1,00,526.40/-. The claimant alleged that while working under the appellant/respondent as Electrician cum maintenance worker, he accidentally fell down, when he was trying to fix the electric tube light and sustained grievous injuries ie., fracture in his left leg. A surgery was done to fix the bone in its place and due to which, he suffered permanent disability and he was not able to earn any money and earlier, he was earning a sum of Rs.3,000/- per month prior to the accident. Even though the appellant/respondent had denied employer-employee relationship between them, as the claimant was not working under him at any point of time, but in their counter, the appellant/respondent had admitted that the claimant was working in their coffee depot as a worker in the packing section and stopped working from 31.10.2002 and that he has evidence to show that the claimant left the job. The appellant/respondent has submitted that he was not a permanent employee working under him and used to engage only temporary workers in his Mandapam. He would also point out that in the legal notice, the appellant/respondent has stated that he worked under the second respondent therein, which is contradictory and the claimant has fallen down elsewhere and sustained injury, but in order to grab money, he has filed the present petition. But the appellant/respondent did not produce any evidence that the respondent/claimant left the job from 31.10.2002.
12.This Court perused the records produced by the appellant/respondent and the ledger produced appears fresh and not in usage of daily account maintaining and it has been prepared by writing some accounts for the sake of the case. The reason for not maintaining any yearly Register Book, stock register for the year 2003-2004 or earlier is not convincing. As per the statute, they should have to maintain records pertaining to the lodge and none of them was produced. The contention of the appellant/respondent that the respondent/claimant did not work in the lodge, he has no right to ask for the documents to be produced, but the appellant/respondent accepts that the Kalyana Mandapam and the lodge are run by the same management and he had admitted that he will let out the rooms in the lodge to the persons, who book the Kalyana Mandapam for marriages and for any function. The denial of maintaining any ledger in the lodge and failure to produce the same, this Court finds that it is only to avoid paying compensation to the respondent/claimant. The appellant/respondent has also denied the evidence of P.W.2, who has also stopped from work in the year 2002 and he would not know whether the claimant was working in the Kalyana Mandapam in the year 2004 and only to help the claimant, P.W.2 has given evidence against the appellant/respondent cannot be accepted.
13.Even though the appellant/respondent agrees that the claimant was working in his wife's coffee shop earlier, denies the liability by stating that at the time of accident, the claimant was not working with him, this Court could not accept the same, in the absence of any evidence to show that he was not engaged. The documents produced is only some accounts maintained and no salary or expenses has been accounted and nothing to show the income and expenditure of the Mandapam debits or credits were maintained. The evidence of the appellant/respondent is that he could engage temporary workers, when it is necessary and no documents were produced when he used to engage them and the mode of payment to the temporary workers. In the absence of any valid reasons to dispute the case of the respondent/claimant, the appellant/respondent is liable to pay compensation to the respondent/claimant.
14.After verifying the records, it is seen that the Doctor has been examined as P.W.3 and as per his evidence, a surgery has been performed in the left leg and plate and screw has been fixed. Due to the fall, he has suffered some injury in the pelvic region and had bends in the thigh bone and had disability to move his legs freely and could not squat on the floor. Based on the injury sustained, Doctor has assessed 40% as permanent disability in his opinion.
15.The counter of the appellant/respondent cannot be accepted and as per his statement no documents were maintained. No person would simply file any claim petition against the erstwhile employee and this Court finds that there is no contra evidence produced to deny the same. When the appellant/respondent, who runs a coffee depot and lodge, has submitted that he engages only temporary workers for the Kalyana Mandapam and did not maintain any ledgers or accounts to show the salary paid and the workers engaged, this Court comes to the conclusion that only to avoid paying compensation the appellant/respondent has taken the stand and not produced any documents to prove the case.
16.Further, it is seen from the records that at the time of the accident, the respondent/claimant was earning a sum of Rs.3,000/- per month and the Deputy Commissioner of Labour has fixed the income of the respondent/claimant at Rs.2,000/- per month and fixed the disability at 40%, as per Ex.P.6 and awarded a sum of Rs.70,176/- as per the following formula:-
Compensation payable : Rs.2000x60/100x146.20X40/100 :Rs.70,146/-.
17.In view of the above, this Court finds that the amount awarded by the Deputy Commissioner for Workman compensation is correct and the same is just and reasonable and this Court is not inclined to allow the appeal and confirms the award passed by the Tribunal.
18.In the result, this Civil Miscellaneous Appeal is dismissed and the award, dated 11.05.2006, made in W.C.No.4 of 2005, by the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli, is hereby confirmed. The claimant/ respondent is entitled to withdraw the entire amount deposited before the Deputy Commissioner of Labour (Commissioner for Workmen Compensation), Tirunelveli to the credit of W.C.No.4 of 2005. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Deputy Commissioner of Labour, (Commissioner for Workmen Compensation), Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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