HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.487 OF 2006 DATED: 11-11-2009 Between: The United India Insurance Co.Ltd., Rep.by its Branch Manager, Khammam, Now represented by the Deputy Manager-Penchalaiah. ..... APPELLANT And Dokuparthy Ravindra Kumar & another. .....RESPONDENTS JUDGMENT: This appeal is directed against the order, dated 22-01-2006, in W.C.No.34 of 2002, on the file of the Commissioner for Workmen’s Compensation, Khammam, wherein the claim of 1st respondent herein was allowed in part awarding compensation of Rs.2,32,543/- fastening joint and several liability on the 2nd respondent-employer and the appellant- insurer. 2. Heard the learned counsel for appellant and the learned counsel for respondents. Perused the record. 3 1st respondent herein filed the claim application before the learned Commissioner seeking compensation of Rs.2,50,000/- for the injury sustained by him during the course of employment on 15-05-1999. According to the applicant, he was working as a clerk in the 2nd respondent’s rice mill and that on 15-05-1999, as per the instructions of the employer, he was supervising the work of digging a well and while the work was in progress, he peeped into the well and on account of slippery nature of the soil, he fell into the well and sustained injuries including fracture to the right leg, for which he took treatment for more than one year. 4. The employer-2nd respondent herein and the appellant- insurer opposed the claim and denied their liability to pay the compensation. According to the employer, the applicant was working in supervisory cadre and is not covered under the policy. 5. In support of his claim, the applicant himself was examined as P.W.1 and marked Exs.A-1 to A-10. R.Ws.1 to 4 were examined and Ex.B-1-policy copy was marked on behalf of the opposite parties. 6. On a consideration of the material available on record, the learned Commissioner held that the applicant was an employee of the rice mill and the accident occurred in the course of employment. The learned Commissioner however estimated the compensation at Rs.2,32,543/-. The learned Commissioner also held that the insurance company is also jointly and severally liable to pay the compensation and the risk is covered by Ex.B-1 policy. Aggrieved by the said award, the insurer filed the present appeal. 7. Learned counsel for the appellant would contend that the applicant is not an employee within the meaning of Section 2(i)(n) of the Workmen’s Compensation Act,1923 ( for brevity, ‘the Act’) and the learned Commissioner failed to note that the applicant-1st respondent herein was in fact the son of one of the partners of the firm. He would further contend that the applicant himself claimed in the earlier application filed before the Labour Officer that his monthly salary was Rs.3,000/- per month and he falsely claimed the salary as Rs.4,000/- per month in W.C.No.34 of 2002 filed before the Commissioner. He would further contend that there was no documentary evidence produced by the applicant to show that he was employed as a clerk in the rice mill. He would further contend that the Commissioner erred in taking the percentage of the disability at 100%, though the applicant has joined the duty after recovery. 8. According to the applicant, he was an employee in the rice mill and was working as a Clerk and that on 15-05-1999 he was entrusted with the job of getting a well dug and while the work was in progress, he slipped and fell into the well while he was supervising the digging operation and sustained injuries. He further claimed that he was drawing salary of Rs.4,000/- per month as a Clerk. It is not disputed by the employer-2nd respondent herein that the applicant was employed as a Clerk. RW.1- employer admitted in his evidence regarding the employment, wage and the occurrence of the accident. The plea of the employer is that because the risk is covered by Ex.B-1-policy the appellant- insurer is liable to reimburse the claim. It is also not disputed that previously the applicant filed an application before the Labour Officer, Khammam and he issued proceedings directing the employer to pay Rs.1,18,285/- but the employer did not pay the amount on the ground that in view of Ex.B-1 policy the insurer is liable to pay the same. Thereafter the applicant approached the learned Commissioner. The appellant-insurer would, on the other hand, contend that the applicant was employed in the supervisory cadre and, therefore, his risk is not covered by the policy. 9. The learned counsel for the appellant would contend that the applicant is not a workman within the meaning of Section 2(i)(n) of the Act. As per Section 2(i)(n) the expression ‘workman’ means any person who is employed in any such capacity as is specified in Schedule-II. Schedule-II contains a list of persons, subject to the provisions of Section 2(i)(n), who are included in the definition of ‘workman’ and includes any person who is employee otherwise than a clerical capacity. 10. Schedule-II Entry (1) states that among others any person who is employed otherwise than clerical capacity would be considered as a ‘workman’ within the meaning of Section 2(i)(n) of the Act. Thus even if the 1st respondent is considered to be a clerk as claimed by him, still he would not be falling within the ambit of the expression of ‘workman’ defined under Section 2 (i) (n) r/w Schedule II of the Act. When once it is found that the 1st respondent is not a workman as defined under the Act, the question of his claiming compensation under the Act in the capacity of workman does not simply arise. 11. It is also not disputed that the 1st respondent, filed the application before the Commissioner, claiming compensation and describing himself as supervisor and the learned Commissioner made aN assessment of compensation of Rs.1,18,285/- and after receiving the notice from the Commissioner, the appellant addressed a letter, dated 14-11-2000, to the employer i.e., the 2nd respondent herein informing that the Supervisor cadre of the employees does not fall under the Workmen’s Compensation policy issued in favour of the 2nd respondent herein. Thus the 1st respondent claimed compensation only as a Supervisor. 12. During the course of enquiry he claims that the said designation is only fanciful and he was discharging the duties of a clerk. However, he does not answer the description of a ‘workman’ as defined under the Act. In fact, it is not disputed that subsequent to the accident and after the 1st respondent rejoined duty he was promoted to the higher cadre as a Manager. Thus, the 1st respondent was in fact awarded with promotion subsequent to his rejoining duty. There is nothing on record to show that on account of the injury sustained in the accident he sustained any loss of earning capacity and on the other hand he was promoted to higher cadre as Manager. That apart, medical evidence on record, particularly, the disability certificate-Ex.A3, shows that the percentage of disability suffered by the 1st respondent is only 52%. However, the learned Commissioner opined that the 1st respondent herein is eligible for 100% loss of earning capacity though in fact there is no loss of earning capacity, as such, and on the other hand the 1st respondent was promoted to a higher post subsequent to the accident. There is absolutely no basis for the finding recorded by the learned Commissioner that the 1st respondent herein suffered 100% loss of earning capacity. 13. Learned counsel appearing for the 1st respondent would contend that the employer i.e., 2nd respondent has paid additional premium covering the clerical staff as well and therefore the 1st respondent is entitled to claim compensation against the insurer. 14. It is to be noted that the 1st respondent filed the claim application seeking compensation under the provisions of the Act but he failed to establish that he answered the description of workman as defined under the Act. If that is so, he is not entitled to claim any compensation under the provisions of the Act. If the 1st respondent is eligible under law to claim compensation against the insurer under the provisions of the Act, it is open to him to avail such other remedies, if available, under law. Insofar as the present claim application is concerned, the 1st respondent herein, viewed from any angle, is not entitled to claim compensation under the provisions of the Act. The impugned order, fastening the joint and several liability against the appellant-insurer, is therefore held not sustainable and the same is accordingly set aside. 15. In the result, the appeal is allowed subject to liberty to the 1st respondent herein to seek other remedies, if any, available under law. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 11th November, 2009 Tsy