1 FA173-18.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR First Appeal No.173/2018 1. [ENTITY] (MSEDCL), through Executive Engineer, Buldhana Vidyut Bhavan, Chikhli Road,Buldhana. 2. [ENTITY] (MSEDCL), through Assistant Engineer, Deulgaon Raja Office, Deulgaon Raja, District Buldhana. 3. [ENTITY], Aged Adult, Occupation: Service, Office of Appellant Nos. (1) & (2), Resident of Civil Colony, Behind Bus Stand, Deulgaon Raja. APPELLANTS Versus 1. Smt. [ENTITY], Aged about 62 years, Occupation: Household, 2. [ENTITY], Aged about 38 years, Occupation: Household, 3. [ENTITY], Aged about 18 years, Uploaded on - 03/04/2018 Downloaded on - 04/04/2018 01:41:50 2 FA173-18.odt 4. [ENTITY], Aged about 13 years, Nos. (3) & (4) Minors- through their Mother i.e. Respondent No.2- All residents of Giroli, [ENTITY], District Buldhana. RESPONDENTS Mr. [ENTITY], Advocate for Appellants. Mr. [ENTITY], Advocate for Respondent Nos. 2 and 3. CORAM : [ENTITY], J. RESERVED ON : February 23, 2018 PRONOUNCED ON : April 03, 2018. ORDER
1. By this appeal, the appellants have challenged the judgment and order dated 12.05.2016 passed by the Commissioner under [ACT], in a claim application filed on behalf of the respondents in respect of compensation payable to them due to the death of the husband of respondent no.2. The respondents filed an application under [SECTION] [ACT] (aforesaid Act), before the Commissioner of Employees' Compensation stating that when the husband of respondent no.2 was working on an electric pole in village Giroli, tahsil Deulgaon Raja, district Buldana, 3 FA173-18.odt electric supply was flashed, as a result of which he was electrocuted and he died on the spot. It was a case of the respondents that the deceased was engaged as an Assistant Labour on daily wages of Rs.300/- by the appellant company when the said accident occurred. A report of the said accident was lodged in Police Station Deulgaon Raja and a first information report was registered under [SECTION] of the [ACT]. The deceased was aged 35 years when the said accident occurred.
2. In the accidental death report submitted on 22.04.2012 under [SECTION] of the [ACT] (Exh.U-31) it was recorded that the deceased who was working as private assistant of [ENTITY] Junior Engineer (appellant No.3) of the appellant company, while working on electric pole became the victim of the said incident. On the same day, i.e. 22.04.2012, an oral report was submitted to the Police Station by [ENTITY], the other Junior Engineer who was in supervision and control over the electric pole, where the deceased became victim of the aforesaid accident. In the said report also, it was stated that the deceased was working as private assistant of the aforesaid appellant no.3 on the electric pole, when due to supply of electricity being resumed on 11 KV 4 FA173-18.odt line, the deceased became victim of electrocution. This oral report was at Exh.U-43.
3. Thereafter on 25.06.2012, the Electrical Inspector submitted a report at Exh.C-62 to the Executive Engineer of the appellant company, stating that the deceased became victim of electrocution at the said electric pole due to the operator working at 33 KV Sub Station starting supply of electricity on the 11 KV line leading to electrocution and death. It was categorically stated in the said report that such supply of electricity was resumed without taking any care and that the incident had occurred because of total negligence and that the relatives of the victim were entitled for compensation as per rules. In pursuance of the same, the respondents were paid an amount of Rs.2,00,000/-.
4. Upon the claim application being filed by the respondents under [SECTION] of the aforesaid Act, the above mentioned documents along with other material were placed on record in support of the claim. The respondent no.2/widow of the deceased appeared as the only witness on behalf of the respondent-claimants. The appellant company produced then Assistant Engineer in order to support its contentions that the 5 FA173-18.odt respondents-claimants were not entitled to compensation. The respondents-claimants had claimed compensation on the basis that the deceased was earning Rs.300/- per day for work being done by him for the appellant company.
5. On the basis of the evidence and material on record, the Court below framed issues pertaining to the question as to whether the deceased was in employment of the appellant- company and as to whether the accident had occurred during the course and out of employment and also whether there was material to show that the deceased was earning Rs.300/- per day. By the impugned judgment and order, the Court below answered the issues in favour of the respondents-claimants and directed the appellants to jointly and severally pay an amount of Rs.5,68,560/- to the respondents-claimants along with interest at the rate of 12% P.A. from the date of the accident. The Court below came to the finding that the deceased was employed with the appellant company on the basis that the appellants did not take the stand at any point of time that the deceased was unauthorizedly interfering with the electric wire or connection. According to the Court below, this demonstrated that the deceased was authorizedly working on the electric pole when the accident took place and that 6 FA173-18.odt therefore, the appellant company was liable under the provisions of the aforesaid Act to pay compensation to the respondents-claimants.
6. Mr.[ENTITY], the learned counsel appearing on behalf of the appellants, while challenging the judgment and order of the Court below, has submitted that a grave error has been committed in rendering a finding in the present case that the deceased was an employee of the appellant company. The learned counsel heavily relied upon the admissions given by the sole witness on behalf of the respondents-claimants, wherein she has stated that her husband (deceased) was never working with the appellant company and that there was no documentary evidence with her to show that the deceased was earning daily wage of Rs.300/- from the appellant company. It was contended that these admissions were enough to show that there was no relationship of employer and employee between the appellant company and the deceased and that, therefore, the claim application filed by the respondents- claimants was not maintainable. It was submitted that when there was no material to show that the deceased was an employee of the appellant company, there was no question of foisting any liability for payment of compensation under the [SECTION] of the aforesaid Act. It was pointed out that the respondents-claimants were already paid an amount of Rs.2,00,000/- in terms of the report of the Electrical Inspector and that, therefore, the impugned judgment and order deserved to be quashed and set aside.
7. On the other hand, Mr. [ENTITY], learned counsel appearing on behalf of the respondents-claimants submitted that there was sufficient evidence on record to show that the deceased was employed with the appellant company and that the claim application of the respondents-claimants was maintainable. The learned counsel relied upon accident report under [SECTION] of the [ACT] (Exh.U-31), oral report made to the Police Station dated 22.02.2012 (Exh. U-43) and the report of the Electrical Inspector at Exh.C-62 to contend that the deceased was working as an assistant or helper on daily wages with the appellant company. It was submitted that when the widow of the deceased as witness before the Court below had submitted that the deceased was earning Rs.300/- per day and no contrary evidence was placed on record by the appellant company, the Court below was justified in granting the quantum of compensation on the basis that the deceased was earning Rs.300/- per day. The learned counsel appearing 8 FA173-18.odt on behalf of the respondents -claimants relied upon the definition of "Employee" under [SECTION] of the Act to contend that the deceased was clearly covered under the said provision as employee of the appellant company. Reliance was further placed on [SECTION], [SECTION] and the definition of "employer" under [SECTION] of the said Act to contend that the appellant company was indeed the employer of the deceased who was its employee on daily wage of Rs.300/- and that, therefore, the findings rendered by the Court below were justified and that the appeal deserved to be dismissed. The learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in the cases of [PRECEDENT], particularly paragraphs 20 and 29 thereof and judgment of this Court in the case of [PRECEDENT], in support of his contentions pertaining to the maintainability of the claim application of the respondents- claimants and the quantum of compensation granted to them.
8. Having heard the learned counsel for the rival parties and upon perusal of the material on record, the following 9 FA173-18.odt questions arise for consideration in this appeal:-
(i) Whether the deceased in the present case could be said to be an employee of the appellant company, under the provisions of the [ACT]?
(ii) Whether, in the absence of any averment on the part of the appellant company that the deceased was
unauthorizedly interfering with the electric supply, the presence of the deceased at the place of the incident was authorised and hence it demonstrated that the accident occurred during the course and arising out of his employment with the appellant company?
(iii) Whether the fact that the Engineers of the appellant company were taking work from the deceased demonstrated that he was an employee of the appellant company?
(iv) Whether the Court below was justified in quantifying the compensation
payable to the respondents-claimants on the basis that the deceased was earning Rs.300/- per day?
10 FA173-18.odt
9. In order to answer the aforesaid questions that arise for consideration in the present appeal, it would be necessary to refer to the definition of "employee" in the aforesaid Act. Under [SECTION], "employee" is defined. The relevant portion of the said provision reads as follows:-
"[SECTION] "employee means a person, who is-
(iii) employed in any such capacity as is specified in [SECTION], 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 any employee who has been injured shall, where the employee is dead, include a reference to his dependants or any of them;] [SECTION]
(ix) employed in setting up, maintaining, repairing or taking down any telegraph or telephone line or post or any overhead electric line or cable or post or standard or fittings and fixtures for the same; or"
10. The deceased husband of respondent no.2 clearly fits into the above quoted definition of employee because at the time of the incident he was working on an electric pole for the 11 FA173-18.odt purpose of maintenance and/or repair of electric line or cable. It is an undisputed fact that the deceased was working on the electric pole when the untoward incident happened, resulting in his death. The documents on record, particularly accident report under [SECTION] of the [ACT] (Exh.U-31), oral report submitted to the Police Station (U-43) and report of the Electrical Inspector (Exh.C-62), show that the deceased was referred to as "private assistant" of appellant no.3 i.e. the Junior Engineer of appellant no.1 at the relevant time. In fact, in the report of Electrical Inspector (Exh.C-62), the deceased was referred to as Assistant to the company. The appellant no.1 is responsible for the maintenance and repair of electric lines and cables and the deceased was admittedly doing such work at the behest of appellant no.3, obviously for the appellant no.1. The respondent no.2 in her deposition has clearly stated that the deceased was being paid Rs.300/- per day for the work being done by him. Much capital is sought to be made on behalf of the appellants on statements made by respondent no.2 (widow of the deceased) that the deceased was not in the employment of the appellant no.1 and that there was no documentary evidence with respondent no.2, to show that the deceased was indeed being paid Rs.300/- per day for the working being done by him.
12 FA173-18.odt
11. But, the aforesaid documents on record clearly show that the deceased was actually working on the electric pole when the unfortunate incident took place. He has been referred to in the said documents as an assistant of the appellant no.3 who was the Junior Engineer of appellant no.1 at the relevant time and as Assistant to the appellant no.1 Company who was responsible for the work of maintenance and repairs of the electric lines and cables in the area concerned. The deceased could not be said to be working on the electric pole for maintenance work as a private assistant of the appellant no.3 Junior Engineer, but, he was obviously doing the task at the behest of appellant no.3 for the appellant no.1. As correctly noted by the Court below that the appellants at no stage ever contended that the deceased was working unauthorisedly when the untoward incident took place. Once it is found, on the basis of material on record, that the deceased was working on the electric pole for maintenance work at the behest of the appellants and he was authorisedly working at the spot, the appellants cannot be permitted to claim that they had no relationship with the deceased at the time when the incident took place.
13 FA173-18.odt
12. The appellants cannot be permitted to take work from persons like the deceased in order to carry out their mandate of maintenance and repairs of electric work and then to turn around to claim that they were not concerned with such person at all, thereby seeking to shirk their responsibility and liability under the provisions of the aforesaid Act. The findings rendered by the Court below in paragraph 12 of the impugned judgment and order, in this context, cannot be found fault with.
13. The appellants cannot wriggle out of their responsibility and liability under the aforesaid Act, by claiming that the respondents had been paid Rs.2,00,000/- as per the recommendation of the Electrical Inspector and that, therefore, they were not entitled to any relief of compensation under the said Act. A Division Bench of this Court has held in the case of [PRECEDENT] (supra) that the aforesaid Act is a beneficial legislation containing a sort of mini insurance scheme and that liability under the said Act is quite different from the liability under tort. The relevant portion of the said judgment reads as follows:-
" 4. Having heard the parties and perused the record it seems to us that the entire approach of the Commissioner was hyper-technical and this appeal deserves to be allowed.
It is true that there is no direct evidence of the
14 FA173-18.odt incident. It is equally true that very scanty material is available on record about the circumstances in which the incident took place. But the absence of ample evidence should not relieve the Court of its duty to arrive at a conclusion on the vital issues on the basis of available material. The [ACT] as such does not apply to the proceedings under the Act, as has been held in [PRECEDENT], and [PRECEDENT]. The Act is a beneficial legislation intended to give some security to the workman in certain types of employment. Indeed it contains a sort of mini- insurance scheme. The liability of the employer under the Act is conceptually quite different from the liability under tort. All these facts, therefore, call for a broad and liberal construction of the Act, lest its evident object is defeated. "When evidence is balanced"
observes Gujarat High Court in the case of [PRECEDENT] "if the evidence shows a greater possibility which satisfied a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed."
Thus, the appellants cannot be permitted to escape liability under the provisions of the said Act, only on the basis that the aforesaid sum of Rs.2,00,000/- stood paid to the respondents.
14. As regards lack of evidence regarding quantum of compensation and the contention of the appellants that the respondent no.2 failed to place any documentary evidence regarding amount of Rs.300/- per day being received by the deceased, it is significant that no evidence has been placed on 15 FA173-18.odt record by the appellants to show as to what was the rate at which workers like the deceased were being paid at the time when the incident took place. In the absence of any material being placed by the appellants on record in the present case, the statement given by respondent no.2 was correctly accepted by the Court below as a basis for calculating the quantum of compensation payable to the respondents. In this context, observations made by the Hon'ble Supreme Court in the case of [PRECEDENT] (supra) are relevant, which read as follows:-
"28. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have become destitutes."
16 FA173-18.odt
15. It is significant that in the present case, the appellants have nowhere challenged or denied the recording in the oral report at Exh.U-43, the accident report at Exh.U-31 and report of Electrical Inspector at Exh.C-62 that the deceased was working as Assistant of appellant no.3. In fact, in the report of the Electrical Inspector (C-62), the words "Assistant to Company" have been used. The said report also states that the deceased was doing the work of braking of jumpers at the electric pole when the untoward incident occurred. This being the most crucial aspect of the present case, clearly shows that the appellant no.1 cannot escape liability under the provisions of the aforesaid Act. As concluded above, the only material on record for ascertaining the wages being earned by the deceased, was the oral evidence of his widow, the respondent no.2, on both the aspects of relationship of the deceased with the appellant no.1 and the quantum of compensation, the findings rendered by the Court below cannot be said to be unsustainable. Hence, the questions of law framed above are answered in favour of the respondents and against the appellants.
16. Accordingly, this appeal is dismissed, the judgment and order passed by the Commissioner, under the aforesaid 17 FA173-18.odt Act/Labour Court, Buldana, is confirmed. There shall be no order as to costs.
([ENTITY], J. )
[ENTITY]/p.s.