IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.380 of 2003 M.Shanmugam .. Appellant Vs 1.The Deputy Commissioner of Labour-1 Commissioner for Workmen's Compensation, Chennai .. Respondents Appeal filed under Section 30 of Workmen's Compensation Act, against the Award and Decree passed in W.C.No.193 of 2001, on the file of the Commissioner for Workmen's Compensation, Chennai (Deputy Commissioner of Labour), dated 26.11.2002. For appellant : Mr.V.T.Balaji For respondents : Mr.A.Shanmugharaj, for R2 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/first respondent against the Award and Decree passed in W.C.No.193 of 2001, on the file of the Commissioner for Workmen's Compensation, Chennai (Deputy Commissioner of Labour), dated 26.11.2002, awarding a compensation of Rs.1,01,659/-. 2.Aggrieved by the said Award and Decree passed by the Deputy Commissioner of Labour (Commissioner for Workmen's Compensation), the appellant/first respondent has filed the above appeal, praying to set aside the award and decree passed by the Commissioner of Labour (Commissioner for Workmen's Compensation). 3.The short facts of the case are as follows: The applicant was working as a 'Chittal' under the second opposite party and the second opposite party paid a sum of Rs.80/- as daily wages. 4.The first opposite party entered into contract with the second opposite party for building construction and as per the contract, the https://hcservices.ecourts.gov.in/hcservices/ second opposite party constructed the building in the first opposite party's premises bearing Door No.9/6, 17th Street, Jain Nagar, Arumbakkam, Chennai-600 106. 5.On 20.05.2000, at about 2 p.m. while the applicant was getting down from the first floor of the above said premises, after inserting stones below the centring iron roads, the applicant fell down and sustained fracture in right ankle and also sustained fracture and dislocation in right elbow and grievous cut injuries in the right foot. 6.After the accident, she was admitted at Kilpauk Medical College Hospital, wherein, she took treatment as inpatient from 20.05.2000 to 09.06.2000. Due to the above said injuries the applicant's movement is totally restricted and consequently the applicant could not do any work especially the building construction work. 7.As the applicant has sustained permanent disability due to the accident, which took place arising out of and in the course of employment under the second opposite party in the building belonging to the first opposite party, both the opposite parties are severally liable to pay compensation to the applicant. The applicant has claimed a compensation of Rs.1,00,000/- from both the opposite parties with interest, from the date of accident till the date of payment of compensation, under Section 10(1) of W.C.Act. 8.The first respondent, in his Counter has resisted the claim stating that he is not a necessary party to the above claim petition and that only the second respondent is the employer of the applicant and hence the first respondent is not liable to pay any compensation. It has also been submitted that the applicant is not a workmen within the meaning of Section 2(1)(n) of the Act. Further, it has been submitted that the first respondent is not an employer under Section 2(3) of the Act. Hence, it has been prayed that the above claim petition may be dismissed as not maintainable in so far as the first respondent is concerned. 9.The second respondent did not give a Counter statement to the claim. Though, two notices had been sent from the Office of the Commissioner for Workmen's Compensation and a notice was sent by the learned counsel for the applicant to the second respondent, as the second respondent refused to accept it, the same has been returned un-served. 10.Regarding the said case, an enquiry was conducted at the Office of the Commissioner for Workmen's Compensation by the Deputy Commissioner of Labour-I. As the second respondent did not enter appearance, he was set ex-parte. 11.The Deputy Commissioner of Labour framed five issues for consideration namely: https://hcservices.ecourts.gov.in/hcservices/ (i) Did the applicant sustain injuries in the accident, which at happened while she was working as an employee under the second respondent and during the course of her employment under the second respondent? (ii) What is the age and monthly salary of the applicant? (iii)What is the extent of loss of earning capacity sustained by the applicant? (iv)What is the quantum of compensation which the applicant is entitled to get? (v)Who is liable to pay compensation to the applicant? 12.The petitioner, A.Jeeva, was examined as PW1 and she had marked Ex.P1-Discharge Summary given by Kilpauk Medical College Hospital; Ex.P2-the Out Patient Medical Report; Ex.P3, the Advocate Notice sent to the first and second respondent dated 11.07.2000; Ex.P4-copy of Contract entered into by the first and second respondents. On the petitioner's side, one Dr.J.R.R.Thiyagarajan was examined as PW2. The PW2 has given evident and marked Ex.P6- Disability Certificate and Ex.P7-the X'rays. On the respondents' side, Shanmugam, the first respondent has given evidence as RW1. 13.The PW1, in her evidence had deposed that on 20.05.2000, while she was working as a 'Chittal' under the second respondent and while she was climbing down, after unloading Jelly in the first floor of the building being constructed, she had fallen down and sustained injuries. She had stated that she had taken treatment, as an inpatient, at K.M.C.Medical College and Hospital for 20 days. From a scrutiny of Ex.P1-Discharge Summary issued by K.M.C.Hospital it is evident that the applicant had received treatment for the injuries she had sustained on 20.05.2000. 14.The first respondent, Shanmugam, was examined as RW1. The RW1 in his evidence had contended that he had entered into a contract for the building work, wherein the accident had occurred, with the second respondent and that it was the second respondent, who was entrusted with the task of building construction work and as such only the second respondent should be held liable to pay compensation to the applicant. During cross-examination, the RW1 has deposed in his evidence that he does not know the residential address of the second respondent and that in the building, where the accident happened, the ground floor has been let out for rent and that he gets a monthly rent of Rs.1,400/- out of this. As such, the Deputy Commissioner of Labour on consideration of the evidence of PW1, RW1 and Ex.P1, the Discharge Summary of K.M.C.Hospital held that the https://hcservices.ecourts.gov.in/hcservices/ applicant sustained injuries in the accident, which happened on 20.05.2000, during the course of employment with the second respondent and in the building owned by the first respondent. 15.Dr.J.R.R.Thiyagarajan, a retired Professor, in Injuries Section of Government Stanley Medical Hospital was examined as PW2. The PW2 has deposed in his evidence that on 05.03.2002, he had medically examined the applicant and had found taht the top portion of the radins, which is the bone in the right fore-arm of the applicant had been fractured. As the bone had hardened, the petitioner had restricted movements of this bone by 30 Degrees and as such she would have difficulty in lifting heavy loads and had certified that the disability sustained by the applicant on this count is 25%. Further, he had deposed that as the applicant had sustained a fracture in her right heel, and because the muscles in this area have also shrunk, she would have difficulty in walking fast and on this count, he had certified that the disability incurred by her is 15%. As such, the Doctor had certified that the applicant had sustained a total disability of 40% and in support of this, he had marked Ex.P6, the Disability Certificate. 16.As no contra evidence had been advanced by the respondents and as no witnesses were examined to disprove the disability assessed by the Doctor, PW2, the Deputy Commissioner held that the applicant had sustained 40% of loss of her earning capacity due to the accident, which occurred on 20.05.2000. 17.The Deputy Commissioner of Labour was of the opinion that as the applicant had sustained the injuries in the accident caused during her work in the building belonging to the first respondent and also as the said building has been let out for rent, the first respondent being the Principal employer of the applicant, is liable to pay the entire compensation awarded to the applicant as per Section 12(1) of the Workmen's Compensation Act. 18.The applicant has not furnished any documentary evidence in support of her age and income. As such, the Deputy Commissioner of Labour, on consideration of Ex.P1-Discharge Summary issued by K.M.C.Hospital, wherein it was stated that the age of the applicant is 28 years, took the age of the applicant as 28 years, at the time of the accident. The Deputy commissioner as per the Minimum Wages Act as enlarged in the Government Order No.(2T) 29, dated 24.04.2000, applicable for workmen took the minimum wages applicable to the applicant working as a 'Chittal' doing building construction work as Rs.2,000/- per month and calculated the compensation as under. 1.Age : 28 years, 2.Multiplier : 211.79, 3.Monthly wage : Rs.2,000/-, 4.Disability % : 40%, 5.Loss of income due to disability : 60/100 X 2000 X 211.79 X 40/100 = Rs.1,01,659. https://hcservices.ecourts.gov.in/hcservices/ 19.Accordingly, the Deputy Commissioner of Labour, Office of Commissioner of Workmen's Compensation, directed the first respondent to deposit the award of Rs.1,01,659/- granted to the applicant into the credit of the W.C.No.193 of 2001, on the file of the Commissioner for Workmen's Compensation, Chennai (Deputy Commissioner of Labour), within a period of 30 days from the date of its Order. The Deputy Commissioner further ruled that the first respondent did not deposited the above said award within the said 30 days, he would have to pay an interest of 12% per annum, on the award amount, from the date of filing the claim petition till the date of payment of compensation. 20.The learned counsel for the appellant has contended in his appeal that the learned Deputy Commissioner ought not to have the fixed liability against the appellant to pay compensation particularly, while the appellant is not the employer of the second respondent ie.A.Jeeva, the applicant in the claim petition, under Section 2(e) of the Workmen Compensation Act and that the second respondent is not a workman under Section 2(1) (a) of the Workmen Compensation Act. It has been contended that the learned Deputy Commissioner of Labour failed to note that the second respondent had not proved that the accident occurred in the place of appellant when the appellant particularly denied the same through his Lawyer's Notice ie.Ex.A5. It has also been contended that the learned Deputy Commissioner of Labour failed to note that there was no privity of contract between the second respondent and the appellant and that the learned Commissioner of Labour ought to have fixed the liability on the third respondent, the Contractor, who was set-exparte. Further, it has been contended that the learned Deputy Commissioner failed to consider that the second respondent has not proved that the accident took place during the work under the supervision of the third respondent and that the learned Deputy Commissioner ought to have considered that there is no supporting evidence to correlate the statement of the second respondent regarding the place of occurrence. 21.It has also been pointed out by the learned counsel for the appellant that two substantial questions of law arises for consideration in the above appeal namely: (i) Whether the learned Deputy Commissioner for Labour is right in awarding compensation to the second respondent to be paid by the appellant herein while the appellant is not the employer as per Section 2(3) of the Workmen Compensation Act? (ii) Whether the learned Deputy Commissioner of Labour is right in awarding compensation to the second respondent as workman under Section 2(1) (n) of the Workmen Compensation Act? 22.As such, it has been prayed by the learned counsel for the appellant to set aside the award and decree dated 26.11.2002, made in W.C.No.193 of 2001 and passed by the Deputy Commissioner of Labour-I. https://hcservices.ecourts.gov.in/hcservices/ 23.After considering the claimant's claim petition and documents filed by the claimants as Exs.P1 to Ex.P7 and Counter Statement filed by the respondents and after hearing oral evidence advanced on both sides and consideration of Doctor's Disability Certificate marked as Ex.P6, wherein it has been certified that the disability sustained by the petitioner was 40% and after scrutiny of Order given the Deputy Commissioner of Labour and after hearing arguments advanced by the learned counsels on either side, the Court is of the view that the findings of the Deputy Commissioner of Labour holding that the first respondent is the Principal employer and the second respondent, is the Contractor, is justified and as such the liability, which has been fastened exclusively on the first respondent/the Principal employer of the claimant is correct. On the basis of this, the Deputy Commissioner of Labour has calculated the quantum of compensation, taking into account the claimant age as 28 years, multiplier of 211.79 and monthly income of Rs.2,000/- per month and disability as 40%. As such, the Deputy Commissioner of Labour adopted the formula and awarded a compensation of Rs.1,01,659/- to the claimant. As this Court cannot find any infirmity in the said order of the Deputy Commissioner of Labour, this Court confirms the award granted by the Deputy Commissioner of Labour made in W.C.No.193 of 2001, dated 26.11.2002. 24.The appellant has deposited the entire compensation amount into the credit of the W.C.No.193 of 2001, on the file of the Commissioner for Workmen's Compensation, Chennai (Deputy Commissioner of Labour). This Court had permitted the claimant to withdraw 50% of the award amount on 19.11.2003 and the claimant is entitled to receive the balance compensation. 25.As the accident happened in the year 2003, it is open to the applicant to withdraw the balance compensation amount, lying in the credit of the W.C.No.193 of 2001, on the file of the Commissioner for Workmen's Compensation, Chennai (Deputy Commissioner of Labour), after observing necessary formalities as per Court procedure. 26.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Deputy Commissioner of Labour- I, Commissioner for Workmen's Compensation, Chennai, in W.C.No.193 of 2001, is confirmed. No costs. krk Sd/- Asst.Registrar /True Copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.Deputy Commissioner of Labour-I, Commissioner for Workmen's Compensation, D.M.S. Compound, Teynempet, Chennai. 2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. A. Shanmugharaj, Advocate CC SR.3068 C.M.A.No.380 of 2003 RSM(CO) EU 28.01.2010 https://hcservices.ecourts.gov.in/hcservices/