It is stated in the claim petition that one Govindaraj was working as a conductor in the respondent transport corporation in Omalur Branch. First claimant is his wife, 2nd and 3rd claimants are his children and 4th claimant is his mother. On 27.09.2000 at 6.00 p.m. while he was proceeding towards Omalur in his TVS 50 near Kaliyappan land, a known vehicle dashed against him by means of which he sustained injuries and after he was removed to Government Hospital he died. He was earning Rs.3,500/- and was aged 34 years at the time of accident. Since the accident took place during the course of and out of the employment, the respondent is liable to pay compensation to the claimants to the tune of Rs.7,00,000/-.
2. In the counter filed by the respondent Transport Corporation it is stated that it is not true that the deceased Govindaraj was working as conductor in Omalur Branch. On 18.11.1997 he attended the interview for the post of 'Daily Paid Conductor'. He was found fit and selected for the post and was called for training. But he was not provided any employment as alleged. The accident as mentioned in the claim petition was not brought to the knowledge of the opposite party. On 27.9.2000 the deceased was not under the employment of the respondent corporation. It is also denied that on the way to his work place he met with the accident. It is incorrect to state that he earned Rs.3,500/- as salary and Rs.1,000/- as collection batta. The claim of Rs.7,00,000/- is highly exorbitant and baseless. The respondent is not liable to pay any compensation.
3. The authority below, has analysed the evidence on record and passed an award directing the opposite party to pay compensation after adopting the following formula:
Age : 34 Factor : 199.40 Salary : Rs.2,000/-
Compensation : Rs.50/100 x 2000 x 199.40 = Rs.1,99,400/-
4. Aggrieved against the award, the respondent corporation has filed the appeal before this Court. At the time of admission of the appeal the following substantial questions of law were framed:
1.Whether the Deputy Commissioner of Labour is right in holding that there was an employer-employee relationship between the appellant Corporation and the deceased in the absence of sufficient materials to prove the same?
2.Whether the Deputy Commissioner of Labour is right in completely ignoring the evidence of R.Ws.1 and 2 and Ex.M.1, attendance register, before concluding that the deceased was an employer of the appellant Corporation?
3.Is the Deputy Commissioner of Labour right in holding that the accident arose out of and in the course of employment of the deceased with the appellant Corporation?
4.Is the Deputy Commissioner of Labour right in finding that the salary of the deceased was 3,500/- per month and in fixing it at 2,000/- per month without any basis?
5. It is the contention of the claimants that the deceased Govindaraj was under employment with the appellant as conductor. Per contra, it is denied by the appellant stating that he was only a daily paid conductor and not a regular employee of the transport corporation and hence there is no labour and employer relationship between the deceased and the opposite party.
6. It is the admitted fact that the deceased was a trainee under the appellant corporation. In this context the learned counsel for the respondents would draw the attention of this Court to the definition of "workman" as in
Section 2(1)(n) and
30(1) of Workmen's Compensation Act 1923, which goes that a person employed as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle. Even though a person was not employed in a regular basis as a driver, helper etc., even if he was employed in any other capacity in connection with the motor vehicle, he has to be termed as "workman" for the purpose of the Act.
7. Learned counsel for the respondents also placed reliance upon a decision of the Supreme Court in 2007-I-L.L.J. 5 [Zila Sahakari Kendra Bank Maryadit v. Shahjadi Begum and others] in which Their Lordships have held that person to whom services of workmen are temporarily lent, employer was bound to pay compensation for death of workman. The relevant portion of the Judgment goes thus:
"12. However, the term 'employee' has not been defined in the Act. The definition of employer, therefore, embraces within its fold not only a person who employs another either permanently or on temporary basis but also those who were in control of the workman temporarily lent or let on hire on them by the person with whom the workman has entered into a contract of service. It is, therefore, a broad definition."
8. In view of the above decision there is no legal embargo for this Court to hold that the deceased Govindaraj was a workman under the appellant, even though he was a trainee during the relevant period.
9. As regards the time during which the accident occurred, a doubt was raised as to whether the time for travel to reach the work place by the employee has to be excluded from the purview of the duty period. Learned counsel for the respondents submitted that it is in the pleadings and evidence that the deceased was going to attend his duty at the time of accident and such journey undertaken by him should be treated to be in the course of and out of employment. This proposition of law has been highlighted in a decision of Madhaya Pradesh High Court in 1992 ACJ 496 [General Manager, Western Railway v. Chandrabai alias Narayanibai and another] in which the learned Judge has followed a judgment of the Supreme Court to reach a conclusion. The operative portion of the judgment is as follows:
"6. In my opinion this argument of the learned counsel is without any force in view of the clear view taken by the Supreme Court in the case of General Manager, B.E.S.T. Undertaking, Bombay v. Agnes, 1958-65 ACJ 473 (SC), wherein the Supreme Court has held that when a driver of a bus was going from his depot after the duty to his house and vice-versa, the aforesaid coming and going should be treated as part of the employment and when such a driver meets with an accident while going home from the depot it should be held that the accident occurred during the course of employment.
7. In the instant case also the deceased was going to attend his duty from his house. While going so, he met with an accident. Therefore, the act of the deceased of going from his house for attending to his duty would be included in the term employment and, therefore, the learned trial Court had not erred in any way in applying the notional extension theory to the facts and circumstances of the case."
10. As per the principle laid down by the Supreme Court, it has to be held that when the deceased undertook a journey from his house, until he reaches his work place, if any thing happens it has to be decided that such incident took place during the course of and out of employment. In this case also when the same principle is applied, it has to be held that the accident took place during the course of and out of employment.
11. As far as the liability of the appellant is concerned the learned counsel for the respondents has garnered support from a judgment of the Bombay High Court, reported in 2009 ACJ 947 [Hanil Era Textiles Ltd., v. Namdeo Mukund Deoghare] wherein it is stated that the workman, a learner, is entitled to get compensation for the injuries sustained by him when he was directed by his employer to do a particular work. The operative portion of the judgment goes thus:-
"7. The fact remains that though he was a learner, the respondent was allowed to operate the machine, due to which he sustained injuries. It is the implicit responsibility and duty of the appellant not to permit learners to independently operate the machines to avoid such accidents. It is the evidence of respondent that since another workman was absent, he was directed to operate the machine. It is the evidence on behalf of respondent that he was forced to operate the machine on that day. This evidence is word against word. The learned Commissioner and Judge have accepted the evidence of the respondent. This acceptance stands to reason. The respondent cannot be in a position to dominate. He would be enjoyed to accept the dictates of his master. Even if the respondent desired to operate the machine, which he was not entitled, there is an implicit responsibility upon the appellant not to allow him to operate the machine. The appellant would be guilty of the tort of negligence in allowing persons, who are not their workmen, to work on their machines and cannot avoid the liability arising directly from the accidents caused thereby. Hence the, respondent would be entitled to be compensated for his injury if he was only a learner, but allowed to operate the machine which only a workman could operate as much as if he was a workman himself. Appellant cannot avoid its statutory liability by allowing the respondent to handle the machine which caused the injury."
12. In view of the above said circumstances, this Court is of the considered view that even though the deceased was a trainee, as per law employee and employer relationship was existing between him and the appellant and hence, the appellant is liable to pay compensation to his dependents viz., the claimants. The substantial questions of law formulated by this Court have been answered as indicated above. This Court does not find any factual nor legal infirmity in the award passed by the authority below which has properly appreciated the evidence and made calculation to arrive at the quantum of compensation. There is no valid ground to interfere with the order challenged before this Court which deserves to be confirmed and it is confirmed.
13. In fine, the Civil Miscellaneous Appeal is dismissed. No costs.
ggs To The Commissioner for Workmen's Compensation, Salem