THE HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No. 268 of 2005 JUDGEMENT: This appeal is filed under Section 30 of the Workmen’s Compensation Act (for short ‘the Act’) against the order dt. 19.12.2003 in W.C.No. 6 of 2001 on the file of the Commissioner for Workmen’s Compensation-cum-Asst. Commissioner of Labour, Nalgonda whereby the learned Commissioner awarded a compensation of Rs. 2,77,641/- with interest @ 9% p.a. from the date of the petition fastening the liability on the appellants and on the opposite party No.1. Brief facts of the case are as under: The opposite party No.1 who is the Line Inspector of A.P. Transco engaged the services of Sri.Baddepaka Venkataiah on daily wages of Rs. 100/- per day with the consent of opposite party No.2 (The Assistant Engineer, Operation, Halia Anumula Mandal, Nalgonda District). Accordingly, on 26.9.2000 at about 9 a.m. the said Baddepaka Venkataiah went to attend electrical work and climbed an electrical pole to repair the electrical lines connected to Transformer No.11 at Angadi Bazar of Halia and while he was attending to repair work, unfortunately the said Baddepaka Venkataiah received electric shock and died on the spot. The applicants, who are the legal heirs of the deceased, filed a claim petition claiming a compensation of Rs. 3,00,000/- on the ground that the said Venkataiah died during the course of employment with A.P. Transco being engaged by the opposite party No.1 and that the deceased was earning a sum of Rs. 4,000/- p.m. by attending to electrical repair works. The opposite party No.2 filed a counter denying that the opposite party No.1 engaged the services of the deceased on daily wages and therefore there is no employer and employee relationship between the deceased and the AP Transco and therefore the applicants are not entitled to any compensation. Before the learned Commissioner, the wife of the deceased was examined as AW.1 and Exs:A.1 to A.6 were marked. On behalf of the opposite parties, RW.1 was examined but no documents were marked on their behalf. The learned Commissioner on a consideration of the entire evidence on record allowed the W.C. and awarded a compensation of Rs. 2,77,641/- with interest at the rate of 9% p.a. from the date of petition, by the impugned order. Aggrieved by the impugned order, the appellants filed the present appeal contending that the learned Commissioner erred in relying on Exs:A.1 to A.5 for the proof of employment of the deceased with the appellants and erroneously fixed vicarious liability on the appellants and that the compensation awarded by the learned Commissioner is also excessive and exorbitant. Sri.O.Manohar Reddy, the learned Standing Counsel for the appellants submitted that Rw.1 in his evidence deposed before the learned Commissioner that he was responsible for the power distribution operations at Halia and that he had three Linemen, two Line inspectors and three Helpers to work under him and that he had got sufficient staff to look after the repair works and that he did not give any permission to opposite party No.1 to engage private electrician. Relying on the evidence of Rw.1, the learned Standing Counsel for the Appellants contended that since Rw.1 did not give any permission to opposite party No.1 to engage the service of any private persons to attend electrical work and since there was sufficient staff to attend to electrical work in Halia, the question of opposite party No.1 engaging the service of the deceased on daily wages does not arise and therefore there is no employer and employee relationship between the deceased and the appellants. The learned Counsel for the appellants further contended that the deceased was not a ‘workman’ as defined under the Act even if the deceased was engaged by opposite party No.1 to attend electrical repair works on that particular day on which the deceased died. In support of his contention, the learned Counsel for the Appellants relied on a decision of the Supreme Court in Om Prakash Batish vs. Ranjit @ Ranbir Kaur[1]. The facts of the said case are that the deceased Ram Lal was engaged by Om Prakash Batish to attend building repair works and while the deceased was attending to the repair work, he came into contact with high-tension electrical wire passing over the roof and suffered serious injury and died subsequently. The legal heirs of the deceased filed a claim petition before the Workmen’s Compensation Commissioner and the learned Commissioner dismissed the petition holding that the deceased was not a workman as defined under the Act. As against the order of the Commissioner, the legal heirs of the deceased filed appeal before the High Court of Himachal Pradesh which allowed the appeal. As against the Judgement of the High Court, the appellant preferred Civil Appeal before the Supreme Court and the Supreme Court after appreciating the evidence on record held as under: “The workman in the present case was employed for a limited period for carrying out repair works in a residential house. The same does not, thus, answer the description of a workman as contained in the provisions of the Act. Schedule II appended to the said Act to which reference was made by Mr.Dhingra, in our opinion, is not applicable, as it is subject to the provisions of Sections 2(1) (n) of the Act. If, therefore, the law as it then stood would exclude the applicability of the Act, having regard to the definition of the term ‘workman’ the same cannot be held to include deceased only because he was working in connection with a building activity.” On the other hand, the learned Counsel for the applicants relied on the definition of ‘workmen’ as defined under Section 2 (1) (n) whereunder the persons who fall under the definition of ‘workmen’ is defined. Clause (xix) of Section 2 (1) (n) defines a ‘workman’ as employed, otherwise than in a clerical capacity in the generating, transforming, transmitting or distribution of electrical energy or in generation or supply of gas. Relying on the above definition, the learned Counsel for the applicants contends that since the deceased was employed by the opposite party No.1 to attend electrical repair works, the deceased clearly falls within the definition of workman and that as the deceased was engaged by opposite party No.1, who is a Line Inspector in AP Transco, there is a employer and employee relationship between the deceased the appellants and the learned Commissioner rightly held that the deceased was a workman and there is employer and employee relationship between the deceased and the appellants and rightly awarded compensation. The learned Counsel for the applicants also relied on a decision of the Supreme Court in State of Maharastra vs. Kanchanmala[2] wherein the Supreme Court held: “In the instant case the day of the accident was the year ending day i.e. 31.3.1980, and the clerks and officers were required to work during night time. The direction had been given by the in-charge of the office, that after normal working hours of the office, the employees gone to their homes were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, it could be said that jeep was being used in connection with the affairs of the State and for official purpose. The respondent who was the clerk in the office was driving the vehicle at relevant time under the authority of the driver who was the clerk in the office was driving the vehicle at relevant time under the authority of the driver who was in- charge of the said vehicle and as the driver had consumed more liquor on that day he permitted respondent to drive the vehicle that night. Thus, the facts disclose and demonstrate that an authorised act was being done in unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with ‘in the course of employment’. It was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant—State from liability.” The learned Counsel for the applicants also relied on another decision of this Court in Rentala Kesavulu vs. Deputy Chief Mechanical Engineer, S.C. Railways, Tirupati[3] wherein this Court held that driver of offending vehicle during the course of employment on master’s business permitted unauthorised passenger to travel in vehicle, the owner of vehicle cannot escape liability. I have perused the entire evidence on record and gone though the decisions relied on by the learned Counsel on either side. The decision (1 supra) relied on by the learned Standing Counsel for the appellants do not apply to the facts of the case on hand because the facts of the said decision are different from the facts of the case on hand. The facts of the decision relied on by the learned Standing Counsel for the appellants are that the deceased was engaged for a limited period for carrying out repair works in a residential house and the same does thus answer the description of a workman as contained in the provisions of the Act and since the deceased did not die while attending repair works of the building he cannot be said to have died during the course of employment. The nature of work entrusted to the deceased was different and the cause of the death of the deceased was different and therefore the decision relied on by the learned Counsel for the appellant do not apply to the facts of the case on hand. Since the deceased was admitted to be an electrician and he has been attending to electrical repairs works with the appellants even prior to his death and he died while he was attending to repair works at Halia on that particular day, he clearly falls within the definition of workman as defined under clause (xix) of Section 2 (1) (n) of the Act. Further contention of the appellants is that the deceased was not engaged by the appellants and therefore there is no employer and employee relationship between the deceased and the appellants. The opposite party No.1 who is alleged to have actually engaged the services of the deceased did not come into witness box and deny that he engaged the deceased for attending electrical repair works at Halia. Therefore, adverse inference can be taken against the appellants for not examining the opposite party No.1. Further, though Rw.1 stated that he had sufficient staff to attend repair works and there is no need for them to engage private electricians, he did not produce any documentary evidence to show that such and such persons are working under him and such and such persons are attending the repair works in Halia. Further, Rw.1 stated in his cross-examination that he did not know whether opposite party No.1 engaged the services of the deceased on that particular day. In the absence of any documentary evidence and in view of the statement of Rw.1 in his cross-examination and since the opposite party No.1 was not examined as a witness before the learned Commissioner, the possibility of the deceased being engaged by opposite party No.1 to attend electrical repair works at Halia on that particularly day and prior to that cannot be ruled out. Further, Ex:A.6 the certified copy of charge sheet clearly shows that the police, Halia filed charge sheet against opposite party No.1 for the offence under Section 304-A IPC. Ex:A.3, certified copy of post- mortem report shows that that the deceased died due to electrical shock. Since the deceased died while he was attending electrical repair work on a pole situated at Angadi Bazar of Halia, it can be said that he died during the course of employment and since the deceased was engaged by opposite party No.1, the Line Inspector (an agent) of the appellants, there is employer and employee relationship between the deceased the appellants. Since the appellants did not stress on the quantum of compensation awarded by the learned Commissioner, it is not necessary to go into the details as to the income of the deceased and the compensation awarded by the learned Commissioner. On the analysis above, I find no substantial question of law arises warranting interference with the order under challenge. The appeal is accordingly dismissed. However, there shall be no order as to costs. __________________________ GHULAM MOHHAMED, J 24.03.2011. KRB. THE HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No. 268 of 2005 JUDGEMENT: Dt. 24.03.2011. [1] AIR 2008 SC 2143 [2] AIR 1995 SC 2499 [3] 2005 (5) ALD 219