IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.9.2008 CORAM; THE HONOURABLE MR.JUSTICE S.PALANIVELU Civil Miscellaneous Appeal No.2799 Of 2002 1.Pavayee 2.Chinnusamy ..Appellants vs 1.The Assistant Engineer Operation and Maintenance Tamil Nadu Electricity Board Manickampalayam 2.The Executive Engineer Operation and Maintenance Tamil Nadu Electricity Board Tiruchengode Namakkal District 3.The Superintending Engineer Tamil Nadu Electricity Board Mettur Dam Salem District ..Respondents Civil Miscellaneous Appeal is filed against the order dated 16.8.2002 (received on 7.9.2002) made in W.C.No.531 of 2000 on the file of the Commission for Workmen's Compensation and Deputy Commissioner of Labour, Salem. for appellants : Mr.N.Manokaran for respondents : Mr.N.Muthusamy (for R1 to R3) JUDGMENT The allegations found in the Claim Petition may succinctly be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ On 6.9.2000, at about 13.00 hours one Murugan, son of the applicants was working in an electrical post in Nallakumarapalayam and met with a fatal accident. After the accident, he was admitted to the Government Hospital at Namakkal and then he was referred to Salem Government Hospital for further treatment. On the way to Salem he died. The accident arose out of and in the course of his employment under the first opposite party. He was employed as a contract labourer by the first opposite party for about four years. A case in Crime No.172/2000 under Section 174 I.P.C., was registered on the file of Velagoundanpatti police station and the post-mortem report shows that he died due to electric shock. He was aged only 23 years at the time of his death. He was the only son of the applicants. He was paid Rs.75/- per day and was earning more than Rs.2,250/- per month. He was in the list as the contract labourer and he was the first person to be made permanent when vacancy arises and he would get more than Rs.3,000/- per month. Notice of the accident was not served on the opposite party since the first opposite party himself gave a complaint before the police station. He has knowledge about the accident and death of Murugan. Hence, the compensation of Rs.3,00,000/- is prayed for. 2. In the counter filed by the first opposite party it is stated that it is true that Murugan was contract labourer attending work such as excavation of pits, erection of electrical posts and dragging of line etc at Manickampalayam (O&M) Section for the past four years. The accident is admitted but it is denied that it occurred during the course of employment on 6.9.2000. The first respondent did not allot any work to Murugan since he had gone to Tiruchengode, O&M Rural Section before 8.00 a.m. for attending mass raid and only after hearing of the accident he went to Namakkal Government Hospital and saw the condition of Murugan. On that day, he did not go to Manickampalayam area. It is understood that the deceased climbed the electrical post in front of the house to rectify the street light on his own accord for lighting the area in front of his house and he was not at all engaged for doing any work on that day. It is not true to say that Murugan died due to electrical shock. In the post-mortem report it is mentioned that he died due to mechanical injuries. It is also not admitted that he was paid Rs.75/- per day. He was not at all engaged on that day for doing departmental work. Hence, the petition has to be dismissed. 3. Considering the documentary piece of evidence and the oral evidence on record the Deputy Commissioner of Labour VII, Salem dismissed the application under an observation that Murugan did not die in the course of or out of employment. It is admitted fact that the deceased was a contract labourer under the first respondent. But it is the definite and specific case of the first respondent that on 6.9.2000 he did not allot any work to Murugan to be attended for the https://hcservices.ecourts.gov.in/hcservices/ department and he was not at all present in Nallakumarapalayam village but he had gone to Tiruchengode area for attending mass raid. It is further stated by the first respondent that the deceased climbed the electrical post in front of his house to attend some repairs in order to make the light to burn. In this regard, the second applicant, the father of the deceased would say that the electric post is situated in front of her house which is 30 feet far away from his house. He climbed the electric post for repair. In the cross-examination, he has further added that he executed the said work under the instruction of wireman. It is stated by the first respondent that the work allotted to the contract labourers are, excavating pits and to erect the poles. Even though it is not specifically mentioned on behalf of the respondents that checking the electric posts nor make good the disconnection, certainly it is the work of a wireman. It is pertinent to state that the petition is silent in this regard, that is to say, Murugan climbed on the electric post under the instruction of a wireman. Further, P.W.1 has not stated in his chief-examination about this aspect. Even he has not mentioned the name of the wireman in his evidence. 4. He has further stated that if a person climbs on a post, he has to wear the gloves and tie a rope over his leg. One has to take necessary precautions before he climbs the electric post. The applicants have not taken any steps to bring the wireman who allegedly instructed Murugan to climb the post nor the contractor under whom Murugan worked. 5. On consideration of the factual aspects available in this matter, it is discernible that the deceased was not at all attending to the work given by the department. It is also not shown that he climbed the electric post under the instruction of a wireman and it is also not known whether the contractor directed him to do the work. It is definite that the first respondent had not at all given any work for him to climb the electric post. 6. The learned counsel for the appellants Mr.N.Manokaran would garner support from a decision of this Court in S.E., CUDDALORE ELECY.DIST.CIRCLE, T.N.E.B. & ANR. V. PAVUNAMMAL & OTHERS (2006(2) TN MAC 323) wherein the learned single Judge of this Court has observed thus: "11. From the above, it is seen that Section 12 contemplates that for the execution by or under the Contractor of the whole or any part of any work which is ordinarily part of the trade or Business of the principal, the principal shall be liable to pay, to any workman employed in the execution of the work, any Compensation which he would have been liable to pay." https://hcservices.ecourts.gov.in/hcservices/ Section 12 of Workmen's Compensation Act is with reference to the liability of a contractor and a principal employer. In case if the applicants are able to establish that their son died in the course of or out of employment, then there can be discussion with regard to the liability of the principal. The learned Judge has also referred and followed the decision of this Court in MADHANAGOPAL ALIAS MADHAN v. RASIKA RANJANI SABHA(2004 (1) MLJ 277 : 2004(1) TN MAC 398 (DB). The learned counsel appearing for the appellants would rely upon a portion of the said Division Bench decision which goes to the effect that so far as workman is concerned he is entitled to recover the compensation from the principal employer and the principal employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer and since the contract of employment in this case is not directly by the Electricity Board, the contractor concerned has to be shown in order to indemnify the amount. It is further held thus: "27.Lastly, in the decision of the Division Bench of this Court in Madhanagopal alias Madhan v. Rasika Rajani Sabha, 2004 (1) MLJ 277 : 2004 (1) TN MAC 398 (DB), there is a reference to the scope of the provisions under Section 12 of the Act which says where any person who employs others or entrusts his work to others for execution in respect of his affairs or Business could very well be proceeded in terms of Section 12. Section 12 obviously includes that the liability for Compensation is ultimately of Contractor or employer who engaged the workman. So far as the workman is concerned, he is entitled to recover the same from the Principal Employer. The Principal Employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer. Even assuming that the above decision is applicable to the present case, the Principal Employer in this case is the Tamil Nadu Electricity Board. Therefore, so far as the workman is concerned, he is entitled to recover the same from the Principal Employer and the Principal Employer has in turn a statutory right to indemnify himself by recovering the same from the immediate employer. Since the contract of employment in this case is not directly by the Electricity Board, the Contractor concerned has to be shown in order to indemnify the amount." Adverting to the facts in this case, there is no evidence to show that as per the instructions of the contractor or wireman, Murugan climbed on the electric post. Hence, the appellants could not take recourse to the said decision https://hcservices.ecourts.gov.in/hcservices/ 7. The learned counsel for the appellants also placed reliance upon the Division Bench decision of this Court in 2006(1) M.L.J. 83 (MADRAS DOCK LABOUR BOARD v. K.GEETHA) wherein in para 20, it is observed as follows: "20.Of course, it is true that the burden of proof relating to the death caused by accident would rest upon the workman to prove that the accident arose out of employment as well as in the course of employment. But, it is not necessary for the workman who comes to the Court to prove it by direct evidence. It may be inferred when the facts proved justify the inference. Though it is impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference, the evidence must be such as it would induce a reasonable man to draw the said inference." Even as per the abovesaid decision, if the applicants are unable to prove the case by direct evidence, the facts available in a case should be adequate to comprehend that his case is proved. But in the case on hand, no such materials are available so as to infer that at the time of accident the deceased was under employment. In other words, there is nothing to show that he died in the course of and out of employment. There is no connection between the employment and the death caused to Murugan as a result of the accident nor the death took place during the currency of employment. 8. In the light of the abovesaid observations, this Court reaches a conclusion that the order passed by the Deputy Commissioner of Labour does not suffer from any infirmity so as to call for interference from this Court. The observation of the forum below deserves to be confirmed and it is accordingly confirmed and the appeal is devoid of merits and is liable to be dismissed. 9. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sal https://hcservices.ecourts.gov.in/hcservices/ To 1. The Deputy Commissioner of Labour, Salem. 2. The Section Officer, High Court, Madras. + 1 CC To Mr.N.Manokaran, Advocate SR NO.51941 + 1 CC To Mr.N.Muthuswaami, Advocate SR NO.51936 Judgment in C.M.A.No.2799 of 2002 SSV {CO} TP/3.10.08 https://hcservices.ecourts.gov.in/hcservices/