IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3085 of 2008 & M.P.No.1 of 2008 The Divisional Manager, United India Insurance Company Limited, Ootacamand, Nilgiri District. ... Appellant Versus 1.Lingaraj 2.The Block Manager, Manjusree Plantations, New Hope Post, Nilgiri – 643 226. ... Respondents Prayer: The above appeal is filed under Section 30 of Workman's Compensation Act, 1923 against the judgment and decree dated W.C.No.43 of 2005 on the file of the Commissioner for Workman Compensation, (DCL) Coonoor. For Appellant : Mr.T.Ravichandran For Respondent : Mrs.K.Annamma (R-2) J U D G M E N T The above appeal has been filed by the appellant / United India Insurance Company Limited, against the judgment and decree dated 28.02.2008 made in W.C.No.43 of 2005 on the file of Commissioner for Workman Compensation, (DCL) Coonoor. 2.The short facts of the case are as follows:- On 21.06.2004, at about 3.30 a.m., when the applicant was returning to his house after doing his duty as a workman under the https://hcservices.ecourts.gov.in/hcservices/ employment of the first opposite party, he had slipped and had fallen down. Due to the impact, he had sustained injuries in his hip and left leg. He took first aid at the Medical Centre at the Estate Hospital, where he worked. Subsequently, he was referred to Kudalor Hospital and then to Ooty Medical College Hospital and Coimbatore Medical College Hospital. He took treatment at Coimbatore Medical College Hospital and subsequently took continuous treatment at Coonoor Government Hospital. After treatment, he was given the discharge certificate stating that he had sustained 10% permanent disability and that he should be given only light work. But even after showing this certificate, the first opposite party, he was given work, which involved hard physical labour. Due to this, the bone which had been displaced during his fall on 21.06.2004, was displaced further. The doctor, who had examined him at Coimbatore Medical College Hospital had certified that due to the said displacement of bone, the applicant had sustained 25% permanent disability. Hence, the applicant had filed a claim for Rs.80,000/- against the first and second opposite party under the Workmen Compensation Act. 3.The first opposite party / Manjusree Plantations, New Hope has resisted the claim and has stated that there was no intimation regarding the alleged accident on 21.06.2004 and that no accident was reported to their Central Hospital, New Hope. The first opposite party has also denied the averments in the claim regarding the age and wages of the applicant. It was also submitted that the claim was excessive. Further, it was submitted that as per the workman employed by him had been covered under a policy of insurance with the second opposite party, only the second opposite party can be held liable to pay compensation. 4.The second opposite party / the United India Insurance Company Limited, Ooty has resisted the claim stating that as the alleged accident on 21.06.2004 had not arisen during the course of duty and had not arisen out of the employment of the applicant under the first opposite party, the claim application should be dismissed. The second opposite party had denied the nature of injuries, medical treatment taken and disability sustained. The second opposite party had also denied that the applicant was given heavy and hard work. It was stated that the applicant's alleged hip pain was not due to any injuries caused but due to the usual wear and tear of body due to age. It was also stated that the averments in the claim that the applicant had handed over the recommendation letter and the certificate issued by the Doctor at K.G.Hospital, who had taken the M.R.I.Scan, to the field conductor was not true. It was also pointed out that the applicant had admitted that he had joined duty, after the alleged accident on 21.06.2004 and is able to do his usual work, like before and was drawing wages and other emoluments in par with co-workers. As such, the alleged injuries sustained by the applicant has in no way diminished the applicant's earning capacity. Hence, the second opposite party has https://hcservices.ecourts.gov.in/hcservices/ prayed for dismissal of the claim. 5.On the averments of both parties, the Deputy Commissioner of Labour, Coonoor had framed two issues for consideration, namely; (i)Is the applicant a workman as per Workmen Compensation Act? Did he sustain injuries in the accident caused while he was doing his duty in the course of employment under the first opposite party? (ii)What is the quantum of compensation which the applicant is entitled to get? Who is liable to pay such compensation? 6.On the applicant's side, the applicant was examined as PW1 and the doctor, who assessed his disability was examined as PW2 and eight documents were marked as Exs.P1 to P8 viz., joining duty report, Recommendation letter of doctor dated 19.08.2005, recommendation letters of doctor at Plantation Hospital, dated 26.08.2005 and recommendation letter issued by Doctor at Plantation to Coimbatore Medical College Hospital, dated 29.07.2005; Medical receipts issued at Coimbatore Medical College Hospital, dated, 12.08.2005, the MRI scan receipt issued at K.G.Hospital, dated 12.08.2005 and the disability certificate dated 12.08.2005. On the respondents' side, one document was marked as Ex.R1 (Insurance Policy) and no witness was examined. 7.PW1 had adduced evidence which was in consonance with the averments made in the claim regarding manner of accident. He had adduced evidence that on 21.06.2004, while returning to his house after doing his duty, he had slipped near the forested area surrounding the plantation. Due to this he had sustained injuries in his hip, knee, hand and legs and was admitted in the Estate Hospital. After treatment here, he had been referred to Kudalur Government Hospital, wherein X- ray was taken. As his bone had been fractured, he had received treatment and the certificate given by the doctor had been forwarded to first opposite party. Though the Estate Doctor had recommended to the first opposite party to give the applicant only light work, he had been given heavy and hard work, as a result of which, he had again fallen down and had taken medical treatment again. On the evidence given by first opposite party, the accident was admitted and the medical treatment taken by the applicant was also admitted. On scrutiny of the medical records given by the Estate Hospital, it is seen that the injuries sustained by applicant on 21.06.2004 in the accident had further been aggravated due to the subsequent work done by the applicant during the course of duty under the employment of first opposite party. It is seen that the applicant had sustained permanent disability. Hence, the Deputy Commissioner of Labour held that the applicant was a workman under the first opposite party as per the https://hcservices.ecourts.gov.in/hcservices/ Workmen Compensation Act and that he had sustained these injuries during the course of doing his duty under the employment of first opposite party. 8.On scrutiny of evidence of RW1, it is seen that the applicant was a daily wage earner and earning a sum of Rs.72.50 per day. In support of his evidence, he had marked Ex.P3, salary for the month of June. On scrutiny of Exs.P3 and P4, it is seen that the age of the applicant was 42 years at the time of accident. Based on the oral and documentary evidence, the Deputy Commissioner of Labour awarded a sum of Rs.55,280/- (60/100 x 2175 x 169.44 x 25/100) as compensation to the applicant and directed the second opposite party to deposit the above said award within 30 days from the date of its order failing which the said award has to be paid with interest at the rate of 12% from the date of accident till the date of deposit. 9.Aggrieved by the award passed by the Deputy Commissioner of Labour, the appellant / United India Insurance Company Limited has filed the present appeal to set aside the award passed. 10.The learned counsel for the appellant has argued that learned Deputy Commissioner of Labour has not taken into account that the premium paid by the first opposite party was calculated taking into account that the monthly wages paid to the workmen was Rs.822.56 only and hence the Insurance Company can be held liable to pay compensation only as per this monthly income of worker. In the instant case, the compensation has been assessed taking into account that the applicant's wages were Rs.2,175/- per month and hence the Deputy Commissioner of Labour had erred in transferring the whole liability on the applicant Insurance Company. It was pointed out that the first opposite party in order to minimise his liability for premium charges had stated that the wage of a worker was Rs.822.56, and hence the appellant can be held liable to pay compensation, taking into account that the income of worker was Rs.822.56 per month. In order to prove the liability of the Insurance Company, the Insurance Company was marked as Ex.R1. As per premium paid by the employer, the Insurance Company's liability is only a sum of Rs.20,906/- (60/100 x 822.56 x 169.44 x 25/100). This was not considered by the learned Deputy Commissioner. 11.The learned counsel for the employer argued that the accident had not happened in the course of employment. The applicant had sustained simple injuries. The first respondent had insured its plantation workers with the Insurance Company. 12.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order, this Court is of the considered opinion that the impugned order passed by the Deputy Commissioner of Labour, Coonoor is a well considered one on the basis of oral and documentary https://hcservices.ecourts.gov.in/hcservices/ evidence. Regarding liability, the Insurance Company is liable to pay a sum of Rs.20,906/- as per insurance policy. The same was rightly pointed out by the learned counsel for the Insurance Company. Therefore, this Court directs the first opposite party viz., Manjusree Plantations to deposit a sum of Rs.34,374/- as compensation into the credit of W.C.No.43 of 2005 on the file of the Commissioner for Workman Compensation (DCL), Coonoor within a period of four weeks from the date of receipt of this order. After such deposit being made, the Insurance Company is at liberty withdraw the excess compensation amount, after filing a Memo along with this order. Likewise, the claimant is permitted to withdraw the entire compensation amount lying in the credit of W.C.No.43 of 2005 on the file of Commissioner for Workman Compensation (DCL), Coonoor, after filing a Memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is disposed of with the above observation. Consequently, the Award and Decree, passed by the Commissioner for Workman Compensation (DCL) Coonoor in W.C.No.43 of 2005, dated 28.02.2008 is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Deputy Commissioner of Labour, The Commissioner for Workman Compensation, (DCL)Coonoor. 2.The Section Officer, VR Section, High Court,Madras. +1cc to Mr.T.Ravichandran, Advocate Sr 36391 +1cc to Mrs. K.Annammal, Advocate Sr 36311 VS(CO) km/28.7. C.M.A.No.3085 of 2008 https://hcservices.ecourts.gov.in/hcservices/