1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.800 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 M/s.Oriental Insurance Company Ltd. represented through the Manager, 555/1, G.H. Road, Theni – 625 531. .. Appellant/2nd Respondent Vs. 1.Seeni 2.S.Subbammal 3.P.Selvi 4.Minor P.Saravanakumar 5.Minor P.Revathy (Minor 4 and 5 respondents are represented by her mother and guardian viz., third respondent) .. Respondents No1to5/Petitioners 6.M.Sethuramalingam .. 6th Respondent/1st Respondent Civil Miscellaneous Appeal has been filed under Section 30 of the Workmen's Compensation Act, against the award dated 30.01.2009 passed in W.C.No.8 of 2007 by the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul. For Appellants .. Mr.S.Murugan For Respondents .. Mr.P.Sathish Murugan 1 to 5 for Hindu Associates For Respondent .. Mr.M.Ashok Kumar No.6 JUDGMENT The award dated 30.01.2009 passed in W.C.No.8 of 2007 by the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul is being challenged in the present Civil Miscellaneous Appeal. 2. The respondents 1 to 5 herein as petitioners have filed W.C.No.8 of 2007 on the file of the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul praying to pass an award of Rs.6,00,000/- by way of compensation, wherein the present appellant and the remaining respondent have been shown as respondents. 3. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul after considering the available evidence on record has awarded a sum of Rs.3,86,119/- by way of compensation upon https://hcservices.ecourts.gov.in/hcservices/ 2 the respondents. With regard to liability as well as quantum, this Civil Miscellaneous Appeal has been preferred at the instance of the second respondent as appellant. 4. The learned counsel appearing for the appellant/second respondent has attacked the award in question on the following grounds: (a) The deceased has served under one Senthil of Paluthu and not under the alleged employment of the first respondent and therefore the second respondent is not liable to pay compensation. (b) The tractor which is said to have involved in the accident should be used only for agricultural purpose and at the time of accident, the same has been utilized for the purpose of carrying sand and therefore the first respondent/ insured has violated policy condition. (c) The policy has covered only driver and not any other person and the specific case of the petitioners is that the deceased has served as a loadman at the time of alleged accident and therefore the second respondent is not liable to pay compensation. 5. The learned counsel appearing for the respondents 1 to 5/petitioners has contended that all the points raised on the side of the appellant/second respondent have been discussed by the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul and ultimately passed the award in question and therefore the present Civil Miscellaneous Appeal is liable to be dismissed. 6. As stated earlier, three vital points have been raised on the side of the appellant/ second respondent. The first and foremost point is that there is no employer and employee relationship amongst the first respondent and deceased. The second point is that the vehicle, which is said to have involved in the accident must be utilized only for agricultural purpose and at the time of accident the same has been utilized for some other purpose and the third point is that the policy in question has covered only driver and not any other person. 7. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul has discussed about the factual aspect as to whether the vehicle, which is said to have involved in the accident has been utilized for agricultural purpose or not? and given a positive finding in favour of the petitioners. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul has not at all discussed the remaining two vital points raised on the side of the appellant/second respondent. 8. In fact, in the First Information Report it has been specifically stated that the author of the First Information Report, deceased and others have served under one Senthil. However in the petition, it has been stated that they served under the first respondent/insured. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul has not at all considered the contra evidence putforth on the side of the petitioners with regard to employment of the deceased. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul has not at all considered the policy condition, even though the concerned policy has been marked as Ex.P.6. Therefore it is quite clear that without giving necessary finding with regard to vital aspects raised on the side of the appellant/second https://hcservices.ecourts.gov.in/hcservices/ 3 respondent, the award in question has been passed by the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul and therefore the same is liable to be set aside and the matter is liable to be remitted to the file of the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul. 9. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in W.C.No.8 of 2007 by the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul is set aside and W.C.No.8 of 2007 is remitted to the file of the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul. Both the petitioners and respondents are entitled to adduce additional evidence. The Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul is directed to dispose of W.C.No.8 of 2007 on the basis of merits, especially on the basis of vital objections raised on the side of the appellant/second respondent. Further it is directed to dispose of W.C.No.8 of 2007 before the end of October, 2011 and the Registry is directed to send all the records immediately. Consequently, connected Miscellaneous Petition is closed. 10. It is represented on the side of the appellant/second respondent that the respondents 1 to 5/petitioners have already withdrawn 50% of the award amount. Under the said circumstances, the appellant/second respondent is at liberty to take appropriate steps before the Commissioner for Workmens Compensation (Deputy Commissioner of Labour), Dindigul. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1. The Commissioner for Workmens Compensation, (Deputy Commissioner of Labour), Dindigul. (with Records) 2. The Section Officer, VR Section, High Court, Madras. + ONE CC TO M/S. S. MURUGAN, ADVOCATE, SR 27242 + ONE CC TO M/S. M.ASHOKKUMAR, ADVOCATE, SR 27482 + ONE CC TO M/S. HINDU ASSOCIATES, P. SATHISH MURUGAN, ADVOCATE, SR 27222 SMN PJ : 25.08.2011 : 3P/6C C.M.A(MD)No.800 of 2011 and M.P(MD)No.1 of 2011 11.08.2011 https://hcservices.ecourts.gov.in/hcservices/