IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.2350 of 2004 1.The Assistant Director, Madahalli Large Scale Silk Farm, State of Tamil Nadu, Department of Sericulture, Madahalli Post, Thalavadi Via, Erode. 2.The Director, State of Tamil Nadu, Department of Sericulture, 249, 2nd Agraharam, Salem - 1 . ... Appellants vs. C.Chikkuthayamma ... Respondent Civil Miscellaneous Appeal is filed under Section 30 of the Workmen Compensation Act, against the order dated 24.11.2003 made in W.C.No.229 of 2002 on the file of Workmen Compensation (Deputy Commissioner of Labour), Salem-7. For appellant : Mrs.V.Bhavani Subbarayan Special Government Pleader (CS) For respondent : Mr.Krishna anand JUDGMENT The Appeal has been preferred against the award passed under Workmen's Compensation Act, awarding a sum of Rs.1,48,004.01 towards the death of one Mr.C.Basuvanna. The case of the legal heirs of the deceased is that he was employed in the appellant department as daily wager from 15.05.1986 continuously. On 31.05.1996, the higher officials asked the deceased to repair the electric connection in the transformer and when attempted to repair as per the direction he was electrocuted and he was taken to Government Hospital Thalavadi then to Coimbatore Medical College and succumbed to the injuries on 10.06.1996. The claim of the https://hcservices.ecourts.gov.in/hcservices/ respondent is that he was earning about Rs.37/- per day and a sum of Rs.1,110/- per month. Hence, they made claim under the Workmen's Compensation Act to the tune of Rs.5 Lakhs. 2. The appellant contested the claim petition contend that the deceased was employed as a daily wager and there was no relationship of employer-employee between the deceased and the department and that the deceased committed suicide on his own due to family problems and that he did not attend electrical problem as per the instructions of the higher officials as he did not possess the qualification to do the electrical work. 3. On appreciation of the pleading and evidence the Commissioner came to the conclusion that the deceased was an employee and he died on 31.05.1996 during employment and out of employment on 10.06.1996. Based on those conclusions a sum of Rs.1,48,004.01 was awarded by the Commissioner and the said award is impugned before this Court. At the time of admission the following substantial questions of law were framed:- " a) Whether the Commissioner right in holding that the death was due to the employment assign to him when he had not been engaged as an Electrician to undertake any repair in the transformer? b) Whether a coolie engaged in agricultural seasonal activities can be a workman within the definition of Sec.2(n) of the Workmen Compensation Act?" 4. Mrs.Bhavani Subburayan, learned Special Government Pleader (CS) submitted the deceased was not a regular employee and he was employed as a daily wager in the Department and therefore there is no employer-employee relationship hence the claim petition under Workmen's Compensation Act is not maintainable. 5. Section 2(n) of the Workmen's Compensation Act 1923 is extracted as follows:- " (n) "workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is- (i) a railway servant as defined in clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an https://hcservices.ecourts.gov.in/hcservices/ aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a mother vehicle, (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be is registered in India, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them." As per the said definition the deceased would come under the category of workman provision as per the admission made by the appellants in para 2 of the counter statement filed before the Commissioner that he was employed as casual labour, whenever there was necessity for workers. As far the the substantial questions of law (B) is concerned. The Tribunal based on evidence of R.W.1 Malaiarasan came to the conclusion that the deceased was employed under the appellant. The findings are based on oral evidence of the witness of the Appellant Department. In view of that the question of law (B) is answered against the appellant. 6. As far as the question of law (A) is concerned, it is the case of the appellant that the deceased on his own touched the live wire with intention to commit suicide due to family problems. Eventhough there is a contention in paragraph 4 of the counter statement to that effect, no evidence was adduced on the side of the appellant to that effect. The accident occurred on 31.05.1996 and he died on 10.06.1996. Due to the accident there should have been a compliant to the police authorities and FIR registered filed does not state that the employee committed suicide. If the case was closed by the police authorities on 16.11.1996 as stated in para 4 of the counter statement nothing prevented the appellants from summoning the police officials or closure report to speak about the alleged suicide. When the appellants specifically took a stand in the counter statement that the deceased in an attempt to commit suicide touched the live electric wire, it is burden cast on the appellants to prove the case by oral as well as documentary evidence. Otherwise it would remain as allegation only. In this case the version of the appellants remained as allegation only and https://hcservices.ecourts.gov.in/hcservices/ no attempt was made by the appellants to prove the said allegation. Hence, the theory of suicide put forth by the appellant is liable to be rejected and accordingly, it is rejected. 7. Admittedly the deceased was a daily wager. When there was a problem in the electrical wiring he was asked to attend the same as he had to obey the commands of the higher officials otherwise his job itself would be at stake. It is too late in the day for the appellant department to contend that no higher official directed him to attend the electric repair work in the transformer. It is normal practice when there is an electrical problems in the office, the lower employees would be asked to attend such work. In this case also there should have been a direction to do the repair, otherwise there was no necessity for the employer to claim over the transformer. As stated above during the employment only the deceased got electrocuted. 8. Moreover, the appellant cannot be allowed to contend that the deceased should not have attempted to repair the transformer as he was not qualified to be an electrician. Irrespective of the qualification, to oblige the officials, the lower employees are asked to do the urgent works like electrical repairs. During emergency situation, nobody would to in search of electrician. Therefore, the contention of the appellant that the deceased was not a qualified electrician to repair the work is liable to be rejected. The Commissioner rightly found that the deceased during the course of and out of employment died in the accident and accordingly, awarded a sum of Rs.1,48,004.01/-. In view of that the question of law (A) is also answered against the appellant. 9. As stated above the Commissioner took into consideration the Government Order dated 28.03.1996 rightly calculated the monthly income taking into the age of the deceased 27 as per Ex.P.2 postmoterm report and arrived at the compensation. 12% was awarded as interest by the commissioner rightly on the same does not warrant any interference. 10. The learned counsel for the respondent submits that only a sum of Rs.1,48,004/- alone was allowed to be drawn by the respondents. In view of that the commissioner is directed to pay the entire balance of amount along with the interest within a period of two weeks from the date of receipt of a copy of this order or on production of a copy by the respondent whichever is earlier. https://hcservices.ecourts.gov.in/hcservices/ 11.Accordingly, the appeal is dismissed. There will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. smn To 1. The Deputy Commissioner of Labour, Salem -7. 2. The Record Keeper VR Section High Court, Madras 1 cc to Spl. Government Pleader, Sr. 822 1 cc to Mr.M. Muthupandian, Advocate, SR. 705 C.M.A.No.2350 of 2004 KV (CO) kk 3/3 https://hcservices.ecourts.gov.in/hcservices/