Challenging the award of compensation of Rs.1,29,105/- for the injuries suffered by the claimant/employee in an accident which happened during the course of his employment, this appeal has been filed.
2.The injured claimant lodged the present proceeding before the Commissioner for Workmen Compensation seeking payment of compensation for the injuries sustained by her when she was employed as a coolie in the appellant hospital. While the claimant was working in the appellant hospital, on 10.08.2004, the scaffolding fell down on the claimant which resulted in multiple fractures in her left thigh. She was taken to J.J. Hospital, Dindigul, where she was treated as impatient for three days and thereafter she had taken treatment in Dindigul, Government Hospital from 09.09.2004 to 11.09.2004. Due to the injuries, the claimant was confined and unable to move. Hence, she sought for compensation of Rs,4,00,000/- stating the above contentions.
3.The respondent filed a statement of objections contending that the claimant was not an employee in the Hospital and on that day, she had come to the hospital to see one RamaKrishnan, who was working as a Supervisor, who happened to be the family friend of the claimant. While the claimant was entering into the semi-constructed building, she fell down on the heap of bricks and sustained injuries on her leg and immediately she was taken to the J.J. Hospital, Dindigul by the appellant and entire treatment expenses were looked after only by the appellant. The injuries sustained by the claimant were only because of her carelessness and negligence and she was not employed in the appellant hospital. The treatment was given to the claimant in J.J. Hospital, Dindigul, only out of humanitarian ground and the same cannot be used to create employer and employee relationship between the appellant and the respondent/claimant.
4.The Commissioner, who tried the claim petition has come to the conclusion that the claimant was taken to J.J. Hospital, Dindigul and treated by the appellant which prime facie shows that she was working under the appellant management. The Commissioner has also found fault with the management for non examination of the said Ramakrishnan, the friend of the claimant who was working as a supervisor in the Hospital. The evidence of RW1, the manager of employer was also considered and on the basis of the said oral evidence, the Commissioner concluded that the accident has occurred during the course of her employment. Since no documentary evidence was produced by the claimant to show her salary, the Commissioner adopted the basic salary fixed by G.O.M.S.29/2D dated 24.04.2005 at Rs.1755/- per month along with the dearness allowance of Rs.1732.50 and in all to Rs.3488/- per month. The Commissioner arrived at 31% as disability factor and concluded that the claimant would be entitled to Rs.1,29,105/- as compensation. Aggrieved by the said award, the employer is on appeal.
5.Heard the learned counsel for the appellant and learned counsel for the respondent/claimant.
6.Learned counsel for the appellant would contend that there is no evidence to show the employer and employee relationship between the appellant and respondent. He would also point out that though the accident is said to have taken place on 10.08.2004, the First Information Report was lodged only on 09.09.2004 which is only after a month.
7.Per contra, learned counsel appearing for the respondent would contend that the manager of the appellant management has been examined as RW1 and in fact, he admitted that he does not have any records to show the employment of the claimant in the appellant hospital. Relying upon the evidence of RW1, wherein he says that the accident has happened when the construction was going on, learned counsel would further contend that the Commissioner of workmen compensation has analysed the evidence and has come to the conclusion on facts and there is no question of law or a substantial question of law as required by
Section 30 of Workmen Compensation Act, to interfere with the conclusion arrived at by the Commissioner of Workmen Compensation.
8.The learned counsel for the appellant would also rely upon the judgment of this Court in Devarajan Vs. N.Appuswamy reported in 2012 (1) TN MAC 849 and it was held that in the absence of any evidence to show that the injured was actually working that the employer on the date of accident, the injured cannot deemed to be workman under the Workmen Compensation Act in order to enable to claim compensation under the Workmen Compensation Act.
9.Learned counsel would further rely upon the judgment of the Division Bench of Kerala High Court in The New India Assurance Company Limited Vs.Sunil.P and another made in MFA.No.201 of 2011 dated 24.01.2014, wherein, the Division Bench has held that unless relationship of employer and employee proved, the Commissioner of Workmen Compensation will not get jurisdiction to award compensation.
10.This Court, while entertaining this appeal framed the the following questions of law:-
(1)Whether in law has not the Commissioner failed to see that in the absence of relationship of employer and employee, the Commissioner has no jurisdiction to entertain the petition under Workmen Compensation Act?
(2)Has not the commissioner erroneously shifted the burden of proof on the appellant when the claimant has not filed any document to show that she was an employee?
11.From the perusal of records, I find that the Commissioner has analyzed the entire evidence and come to the conclusion that there was in fact employer and employee relationship between the claimant and the appellant/management. The fact that the construction work was being carried on in the hospital was admitted and the claimant was immediately after the accident was taken to the J.J.Hospital and she was treated at the expense of appellant is also admitted. It is seen from the evidence of R.W.1 who has been working as a Manager has himself stated that he does not have any record to show that he is the manager and that he does not have any record to show the employment of the claimant. This would go to show that the appellant management has not maintained any record or has screened away from the records from the Court. Yet another fact that militates against the appellant management is that it has not examined P.Ramakrishnan who is the family friend of the claimant. Therefore, I see no perversity in the appreciation of evidence by the Commissioner in order to interfere with the question of fact by this Court under
Section 30 of the Workmen Compensation Act.
12.On the second question of law, I do not find that the Commissioner had shifted the burden of proof on the appellant management. Further, I do not think that the delay in lodging F.I.R would lead to presumption that it is an after thought Accordingly, the appeal is dismissed. No costs.
To The Commissioner for Workmen Compensation, Dindigul..