This appeal is focussed as against the judgment and decree dated 28.08.2000, passed in W.C.No.16 of 2000, on the file of the Commissioner for Workmen Compensation, (Deputy Commissioner of Labour), Tirunelveli.
2. Heard both sides.
3. A re'sume' of facts absolutely necessary and germane for disposal of this Civil Miscellaneous Appeal would run thus:
One Ponniah was engaged by the fourth respondent K.Balakrishnan to perform construction work in the premises of the appellant herein and in the process of construction of his industry the said Ponniah fell down from a height of 16 feet and sustained injuries. Whereupon he was taken to the Hospital and there he succumbed to the injuries, leaving behind his widow, the first respondent herein and his two minor children, respondents 2 and 3 herein.
4. Being aggrieved by and dissatisfied with the order of the Workmen Compensation Commissioner, the present appeal is filed on the following main grounds among others:
The Lower Authority failed to consider the fact that the deceased Ponniah was an employee under the fourth respondent, in fact the appellant entrusted the entire work of constructing the factory with the 4th respondent. Absolutely there is no privity of contract between the appellant and the 4th respondent. The Lower Authority without considering the legal issues, mulcted the appellant with the responsibility of paying compensation which is also excessive in quantum.
5. During trial, on the side of the claimants P.W.1 was examined and Exs.P.1 and 2 were marked and on the side of the 2nd respondent (appellant herein) R.W.1 was examined and Ex.R.1 and R.2 were marked.
6. Points for consideration are:
1. Whether the finding of the lower authority that the appellant was the principal employer of the deceased is unjustifiable?
2. Whether the compensation awarded is on the higher side?
7.Point 1: The learned counsel for the appellant would develop his argument placing reliance on the grounds of appeal and highlight that only the fourth respondent who was the contractor under the appellant should pay the compensation to the claimants and the appellant cannot be made to take the responsibility of paying the same. Whereas the learned counsel for the claimants by drawing the attention of this Court to
Section 2(m) r/w Schedule II viii(a) of Workmen's Compensation Act, 1923, would develop his argument that any worker employed in construction of any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof, shall be deemed to be workmen under the person who is undertaking the construction work.
8. The occurrence took place in the year 1999, therefore, even as per the definition of workmen as it existed at that time in the statute to wit the Workmen's Compensation Act, it is clear that the deceased could rightly be termed as employee under the appellant, because it is for the appellant's benefit the construction was raised and from a hight of 16 feet the deceased fell down and died. Hence, absolutely there is nothing to interfere with the reasons adopted by the Workmen Compensation Commissioner in fixing the responsibility on the appellant. The admitted facts would clearly attract the responsibility of the appellant as he happened to be the person who engaged the fourth respondent as his contractor in raising the construction for setting up an oil industry. Accordingly, this point is decided.
9. Point 2 : The Lower authority assessed the monthly income of the deceased, aged about 35, in the year 1999 at the rate of Rs.2,000/-. It is common knowledge that a fitter of 35 years old during the year 1999 could have very well earned Rs.2,000/- per month and there is no contra evidence to indicate that the lower authority should have taken lessor amount as the multiplicand for assessment.He has chosen the factor 197.06, which cannot be found fault with. As such the calculation made by the lower authority is found to be correct and ultimately the award in favour of the claimants by the employer requires no interference.
10. In the result, this appeal is dismissed. No costs.
sj To The Commissioner of Workmen Compensation, (Deputy Commissioner of Labour), Tirunelveli.