Bhaskar vs G. Selvaraj and Others

P.R. Shivakumar, J.—This civil miscellaneous appeal has been preferred u/s 30 of the Workmen''s Compensation Act, 1923 against the

order of the Deputy Commissioner of Labour-II (Commissioner for Workmen''s Compensation-II), Chennai dated 6.11.2000 made in W.C. No.

263 of 1997.

The opposite party No. 2 before the Commissioner for Workmen''s Compensation is the Appellant herein. The claimants before the

Commissioner for Workmen''s Compensation are the Respondent Nos. 1 and 2 in the appeal. The opposite party Nos. 1 and 3 in the WC are the

Respondent Nos. 3 and 4 in the appeal.

For the death of one Sivakumar, son of the Respondent Nos. 1 and 2 herein, they made a claim before the Commissioner for Workmen''s

Compensation-II (Deputy Commissioner of Labour-II), Chennai u/s 10(1) of the Workmen''s Compensation Act, 1923, for compensation. The

undisputed fact is that the deceased Sivakumar, while clearing the drainage blocks through the manhole at the junction of the first and second Main

Roads, Shaik Abdullah Nagar, Chennai on 3.10.1996 at about 1.45 p.m. he got deep into drain water; that though the persons nearby were able

to get him out in an unconscious condition and admitted him in the Government Hospital, Royapettah, the doctors could not save his life and he

died of asphyxia due to drowning within a couple of hours after admission in the said hospital for treatment.

Contending that he was employed under the Appellant herein (opposite party No. 2 in the WC) on a monthly salary of Rs. 1,500 and that the

above said accident had occurred out of and during the course of his employment under the opposite party No. 2 (the Appellant herein), the

claimants (Respondent Nos. 1 and 2 herein) had preferred the above said claim in W.C. No. 263 of 1997. It was their contention in the claim

petition that the Appellant herein (opposite party No. 2) was the immediate employer whereas principal employer was the Respondent No. 3

herein (opposite party No. 1 in WC), namely, the Commissioner, Corporation of Chennai. Contending further that the Appellant herein (opposite

party No. 2) did the job of clearing the blocks in the drainage channel employing the deceased Sivakumar on behalf of the principal employer,

namely, the Commissioner, Corporation of Chennai, the Respondent Nos. 1 and 2 herein (claimants in the WC) had made the claim initially against

the Appellant herein and the Respondent No. 3 alone. The Respondent No. 3 (opposite party No. 1) did not file any counter statement and

remained ex parte. The Appellant herein/opposite party No. 2 entered appearance and filed a counter statement denying the averments found in

the claim application regarding employment of the deceased Sivakumar. He had also contended that there was no connection between himself and

the Respondent No. 3 herein (opposite party No. 1) and that even if it could be assumed that the Appellant was the immediate employer of the

deceased, the Respondent No. 3 herein/opposite party No. 1 could not be termed as the principal employer. It was also his contention in the

counter statement that he was only a plumber under Respondent No. 4 herein, namely, the Managing Director, Chennai Metro Water Supply and

Sewerage Board, Chennai.

In view of the said stand taken by the Appellant/opposite party No. 2, Respondent Nos. 1 and 2 herein/claimants took steps to implead

Managing Director of Chennai Metro Water Supply and Sewerage Board as the opposite party No. 3 and accordingly the Respondent No. 4

herein was impleaded as the opposite party No. 3 in the WC. The Respondent No. 4 herein/opposite party No. 3 filed a counter statement

contending that licence was granted to the Appellant/opposite party No. 2 to give water or sewerage connections to the buildings from the main

lines and that under the licence he did not have any right or obligation to clear any blockage in the main sewerage channel; that the said job was

being done by the Respondent No. 4 (opposite party No. 3) directly through their employees and that hence if at all the deceased Sivakumar had

been engaged by the Appellant/opposite party No. 2 for the said purpose, the same was unauthorised and hence the Respondent No. 4/opposite

party No. 3 could not be held liable as the principal employer.

In the light of the above said contentions, the parties went for enquiry. The Respondent No. 1 herein/claimant No. 1 by name Selvaraj was

examined as PW 1. Two persons named Thomas and Subramani were examined as PW 2 and PW 3 respectively. As many as eleven documents

were marked as Exhs. A1 to All on the side of the claimants. The Appellant was examined as RW 1 and one Iyyanar Bharathi was examined as

RW 2 and six documents were marked as Exhs. Rl to R6 on the side of the Appellant herein/opposite party No. 2.

Deputy Commissioner of Labour-II, Chennai, in his capacity as Commissioner for Workmen''s Compensation-II, after considering the above

said evidence came to the conclusion that the Respondent No. 3 herein (opposite party No. 1) namely, the Commissioner, Corporation of Chennai

had no connection either with the deceased or with the Appellant/opposite party No. 2; that maintenance of sewerage was not the job of the

Corporation of Chennai and that the same was the responsibility of the Respondent No. 4 herein/opposite party No. 3, namely, the Managing

Director, Chennai Metro Water Supply and Sewerage Board. The Commissioner for Workmen''s Compensation also held that though the

opposite party No. 2/Appellant was the licensed plumber, having been given licence by the Respondent No. 4/opposite party No. 3 to give water

and sewerage connections to the houses from the main lines, under the said licence the Appellant/opposite party No. 2 had not been authorised to

undertake the job of clearing any block found in the main sewerage channel. The Commissioner also held that the same was looked after by the

Respondent No. 4/opposite party No. 3 directly through the employees of the Board. However, the Commissioner for Workmen''s Compensation

held that the claimants were able to prove that the deceased was under the employment of the Appellant/opposite party No. 2 and it was the

Appellant who engaged the deceased to go into the manhole to clear the blocks and hence the Appellant/opposite party No. 2 alone was liable to

pay compensation to the Respondent Nos. 1 and 2/claimants.

The Commissioner assessed the wages of the deceased at the rate of Rs. 1,050 per month based on District Collector''s fixation of wages for

the year 1996 as Rs. 35 in the absence of minimum wages fixed by the government. Taking the age of the deceased to be 25,216.91 was selected

as the relevant factor and total compensation was worked out at Rs. 1,13,878. The Commissioner for Workmen''s Compensation-II, Chennai

ultimately passed an order directing the Appellant/opposite party No. 2 to deposit the above said sum within 30 days from the date of receipt of

the said order with a further direction that in case of default in depositing the said amount within 30 days, the same shall carry an interest at the rate

of 12 per cent per annum from the date of filing of the claim petition. So far as Respondent Nos. 3 and 4 in the appeal (opposite party Nos. 1 and

3) are concerned, the claim petition was dismissed.

Aggrieved by and challenging the said award dated 6.11.2000 directing the Appellant to pay compensation, the present civil miscellaneous

appeal has been filed u/s 30 of the Workmen''s Compensation Act, 1923, on various grounds set out in the memorandum of civil miscellaneous

appeal.

This Court heard the submissions made by Mr. N. Karthikeyan, the learned Counsel for the Appellant and Mr. Sakthivel, learned Counsel for

Respondent Nos. 1 and 2 and that of Mr. V. Bharathidasan, learned Counsel for the Respondent No. 3. The materials available on record

submitted by the lower authority for reference in this appeal were also perused.

Section 30 of the Workmen''s Compensation Act, 1923, provides that an appeal shall lie from the orders of a Commissioner for Workmen''s

Compensation only on a substantial question of law. Section 30 of the Workmen''s Compensation Act, 1923 reads as follows:

Appeals. - (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim

in full or in part for a lump sum;

(aa) an order awarding interest or penalty u/s 4-A;

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for distribution of compensation among the Dependants of a deceased workman, or disallowing any claim of a person

alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to

conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other

than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the

order of the Commissioner gives effect to an agreement come to by the parties:

Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the

Commissioner to the effect that the Appellant has deposited with him the amount payable under the order appealed against.

(2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.

The first proviso to Sub-section (1) makes it clear that no appeal shall lie against any order of the Commissioner for Workmen''s

Compensation unless a substantial question of law is involved in the appeal. The following were the substantial questions of law framed by this

Court at the time of admission:

(1) Whether the parents are Dependants as defined u/s 2(1)(d) of the Workmen''s Compensation Act 1923?

(2) In the absence of any evidence to prove dependence on the income of the deceased, whether the parents are Dependants as defined under the

Workmen''s Compensation Act, 1923?

(3) Whether the Appellant can be held liable for compensation where there was no employer-employee relationship?

(4) Even an assumption of employer-employee relationship without admitting u/s 2(1)(n) of the Workmen''s Compensation Act, 1923 whether the

Appellant is liable as the nature of work done by the deceased was not the work trade or business of the applicant?

Let us now take up the said question framed as substantial questions of law for consideration one by one. The question framed as the fourth

substantial question of law involved in this case does not need elaborate consideration. The Appellant/opposite party No. 2 is admittedly a plumber

licensed by the Chennai Metro Water and Sewerage Board to give water and sewerage connections to the buildings from the main lines.

Therefore, we cannot say that the work of clearing the blocks found in the sewerage channels is totally unconnected with the nature of work done

or trade or business carried on by the Appellant. Whether he was given authority by the Sewerage Board or not is not relevant for determination of

the fourth substantial question. What is relevant is whether the work allegedly entrusted to the deceased by the Appellant is connected with trade

or business of the Appellant. As it has been admitted that the Appellant is a plumber licensed by Managing Director, Chennai Water Supply and

Sewerage Board and that by such licence he was authorised to give water and sewerage connections to the buildings from the main lines, this

Court comes to the conclusion that, if at all the work of clearing the blocks found in the main sewerage channel was entrusted by the Appellant to

the deceased, the same cannot be said to be totally unconnected with the trade or business of the Appellant. Therefore the fourth substantial

question of law has to be necessarily answered against the Appellant and in favour of the Respondent Nos. 1 and 2/claimants.

The first and second substantial questions framed by this Court at the time of admission are in effect one and the same. Hence they are taken

up together for discussion. It is the contention of the Appellant that the claimants being parents of the deceased, in the absence of any evidence to

the effect that they were Dependants of the deceased, the award of compensation under the Workmen''s Compensation Act in their favour cannot

be sustained. The learned Counsel for the Appellant contends that neither in the claim petition nor in the evidence, clear-cut averments were made

to the effect that Respondent Nos. 1 and 2/claimant Nos. 1 and 2 were in fact dependent upon the income of the deceased and thus they were

Dependants of the deceased.

Section 2(1)(d) of the Workmen''s Compensation Act, 1923 defines the term ''dependant''. It reads as follows:

(d) ''dependant'' means any of the following relatives of a deceased workman, namely:

(i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter or a widowed mother; and

(ii) if wholly dependant on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who

is infirm;

(iii) if wholly or in part dependant on the earnings of the workman at the time of his death:

(a) a widower,

(b) a parent other than a widowed mother,

(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted if married and a minor or if

widowed and a minor,

(d) a minor brother or an unmarried sister or a widowed sister if a minor,

(e) a widowed daughter-in-law,

(f) a minor child of a pre-deceased son,

(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or

(h) a paternal grandparent if no parent of the workman is alive;

Explanation. - For the purposes of Sub-clause (ii) and items (f) and (g) of Sub-clause (iii), references to a son, daughter or child include an

adopted son, daughter of child respectively.

A widowed mother becomes a dependant without any further proof of dependency as per Sub-clause (i) of Section 2(1)(d) whereas, as per

Section 2(1)(d) Sub-clause (iii)(b), a parent other than a widowed mother will become a dependant only if he/she is wholly or in part dependant on

the earnings of the workman at the time of his death. In the case on hand, the Respondent Nos. 1 and 2 herein/claimant Nos. 1 and 2 are

admittedly the parents of the alleged workman, namely, the deceased Sivakumar. They do not come u/s 2(1)(d) Sub-clause (i). As they come

under Sub-clause (iii) of Section 2(1)(d) it must be proved that they were either wholly or in part dependant on the earnings of the deceased at the

time of his death. Nowhere in the claim petition, as rightly pointed out by the learned Counsel for the Appellant it has been stated that any one of

the Respondent Nos. 1 and 2 herein/claimant Nos. 1 and 2 was either wholly or in part depending on the earnings of the workman. Even the

Respondent No. 1 herein/claimant No. 1, in his evidence as PW 1 has not stated anything about the contribution of the earnings of the deceased to

the claimants. Nothing is there in his evidence to show that Respondent Nos. 1 and 2/claimants did receive any monetary support from the

deceased or that they were either wholly or in part depending upon his earnings. Even the other witnesses examined on the side of the claimants,

namely, PWs 2 and 3 have not spoken anything about the dependency of the Respondent Nos. 1 and 2/claimant Nos. 1 and 2 on the deceased.

Therefore, this Court has no other option except to accept the contention of the learned Counsel for the Appellant that the Respondent Nos. 1 and

2/claimant Nos. 1 and 2 have not proved that they were depending on the income of the deceased either in whole or in part to make themselves

entitled to claim compensation under Workmen''s Compensation Act for the death of the deceased.

In support of his contention learned Counsel for the Appellant drew the attention of this Court to the judgment of a learned single Judge of this

Court in the case of The Superintending Engineering, Tiruvanamalai Electricity System, North Arcot District Vs. S. Kannaiyan and 2 others, . In

the said case the learned single Judge has clearly analysed the difference between Clause (i) of Section 2(1)(d) and other clauses of Section 2(1)

(d) and has clearly observed that only those who are found in Clause (i) would be the Dependants without any further proof of dependency on the

earnings of the workman and that those who come under the subsequent clauses, namely, Clause (ii) and (iii) have to prove their dependency on

the earnings of the deceased workman to make themselves entitled to claim compensation. I am in complete agreement with the observations made

by the learned single Judge in the above said case. Any one coming under Clause (i) of Section 2(1)(d) shall be the dependant without any further

proof of dependency on the earnings of the deceased workman. Any one coming under Clause (ii) of Section 2(1)(d), namely, a son or daughter

who has attained the age of 18 years and who is infirm shall be a dependant provided he or she was wholly dependant on the earnings of the

workman at the time of his death. So far as the other persons who come under Clause (iii) are concerned, to be recognized as Dependants entitled

to claim compensation, they have to prove that they were either wholly or in part dependent on the earnings of the workman at the time of his

death.

The Respondent Nos. 1 and 2/claimant Nos. 1 and 2 come under Sub-clause (b) of Section 2(1)(d)(iii). As such unless they prove that they

were either wholly or partly depending upon the earnings of the deceased, they cannot maintain a claim and their claim for compensation under the

Workmen''s Compensation Act has to be negatived. In this case, as pointed out supra, there is no evidence to show that they were either wholly or

partly depending upon the earnings of the deceased. Therefore, the first and second substantial question framed, have to be answered in favour of

the Appellant and the appeal shall succeed on those substantial questions of law.

Third substantial question framed at the time of admission is that whether the Respondent Nos. 1 and 2/claimants were able to prove the jural

relationship of employer-employee between the Appellant and the deceased Sivakumar. Of course, it is the specific averment made in the claim

petition that the deceased was employed under the Appellant. Some kind of evidence has also been adduced to substantiate the contention of the

Respondent Nos. 1 and 2/claimant Nos. 1 and 2 to prove that the deceased was an employee under the Appellant at the time of accident and that

the accident itself took place out of and in the course of his employment under the Appellant. The same happened to be the evidence of PWs 1 to

Normally, the High Court, in appeal u/s 30 of Workmen''s Compensation Act, shall not interfere in a finding on a question of fact. The

Commissioner for Workmen''s Compensation has given a finding on a question of fact that the deceased Sivakumar was under the employment of

the Appellant herein.

At the outset it may look like a pure question of fact in which this Court cannot interfere in exercise of its Appellate powers u/s 30 of the

Workmen''s Compensation Act. However, it has been repeatedly held in a number of cases that a question of fact will assume the character of a

substantial question of law if the finding is perverse. If a finding of fact is based on no evidence or based on inadmissible evidence alone or on the

basis of evidence on which no reasonable person would have arrived at such a conclusion, then such finding, though a finding of fact, shall be

elevated to the level of a substantial question of law.

In this case, though there is oral evidence to the effect that the deceased was under the employment of the Appellant/opposite party No. 2,

most parts of the evidence seem to be hearsay. There is no document, not even a scrap of paper to show that the deceased was employed under

the Appellant and he was in receipt of wages from the Appellant. However, the Respondent Nos. 1 and 2/claimants have produced a copy of the

alleged statement of the Respondent No. 1/claimant No. 1 given to the police attested by a number of persons, Exh. All. The same seems to be a

self-serving document created for the purpose of showing that the deceased was under the employment of the Appellant. The Respondent No.

1/claimant No. 1, while deposing as PW 1, would state that after the accident, pursuant to the mediation of panchayatdars the Appellant paid a

sum of Rs. 20,000 as compensation to the Respondent Nos. 1 and 2/claimants. The said version of PW 1 was also supported by the parole

evidence of PW 3, which was also supported by PW 2. In order to substantiate the same statement, Exh. All, has been produced. But it is

pertinent to note that the same does not contain the signature of the Appellant, who is said to have paid a sum of Rs. 20,000 as compensation to

the claimant No. 1. The said amount was paid according to PW 1 and Exh. P11 on 4.10.1996, that is, a day after the death of the deceased. If at

all it is true that Appellant paid such an amount, then there would not be any occasion for the Respondent Nos. 1 and 2/claimants to make a claim

for compensation before the Workmen''s Compensation Commissioner.

On the other hand, if the claimants were not satisfied with the quantum of compensation allegedly paid by the Appellant, they would have

chosen to pray for an award of compensation as per the formula found in the Act minus the said amount already received by them. But the claim

petition does not contain any reference to such panchayat or the alleged payment of a sum of Rs. 20,000 as compensation. The claim application

also does not make any reference to statement. Exh. All.

It shall also be pertinent to note that prior to the filing of the claim petition, the claimants caused a legal notice to be issued through their lawyer

on 4.4.1997, a copy of which has been marked as Exh. A9. The acknowledgment has been marked as Exh. A10. Even in the said notice, no

reference has been made to such a payment of Rs. 20,000 or any other amount as compensation by the Appellant. The same will clearly make it

obvious that as an afterthought only Exh. All has been brought into existence. Under the circumstances, no reasonable person would have arrived

at a conclusion that the evidence was sufficient to substantiate the case of the Respondent Nos. 1 and 2/claimants that the deceased was under the

employment of the Appellant. Therefore, this Court comes to the conclusion that the finding of the Commissioner for Workmen''s Compensation to

the effect that the deceased Sivakumar was employed under the Appellant at the time of his death should be held a perverse finding capable of

being interfered with by this Court in exercise of its Appellate power u/s 30 of the Workmen''s Compensation Act. Therefore, this Court comes to

the conclusion that the appeal succeeds on the third substantial question of law also.

For all the reasons stated above, this Court is of the considered view that the order of the Commissioner for Workmen''s Compensation-II

(Deputy Commissioner of Labour-II), Chennai cannot stand the scrutiny of this Court and the same deserves to be reversed.

In the result, the appeal is allowed. Order of the Commissioner for Workmen''s Compensation-II, (Deputy Commissioner of Labour-II),

Chennai is hereby set aside and the claim petition made by the claimants shall stand dismissed in its entirety. Consequently, connected

miscellaneous petition is also closed.