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Judgment
M. Chockalingam, J.—Challenge is made to an award of the first respondent the Deputy Commissioner for Workman Compensation made
in W.C. No. 330 of 2003 dated 20.6.2005.
The Court heard the learned Counsel on either side.
The short facts necessary for the disposal of the writ petition can be stated thus:
The respondents 2 to 9 herein, who are the claimants before the first respondent, are the legal representatives of the deceased Doraisamy.
According to them, the said Doraisamy was employed under the petitioners'' Association during the relevant date i.e., 21.3.2003, as a mason to
do work in the flat houses situated in Door No. 38, College Road, Nungambakkam, Madras. When he was doing his work, he died following an
incident that took place at about 5.00 P.M. on that day, and immediately, a case came to be registered by the concerned police. Thereafter, the
dead body was subjected to postmortem, and a postmortem certificate was also issued. The legal representatives have made a claim under the
provisions of the Workmen''s Compensation Act, 1923, stating that they were entitled to get compensation by the Flat Owners'' Association to the
extent of Rs. 3.00 lakhs.
The said application was countered by the Association stating that the said Doraisamy was not employed by them; that they were actually to do
certain civil works which were entrusted to one K. Vasudevan who was a Contractor and under whom the said Doraisamy worked; that there was
no contractual relationship between Doraisamy and the Association; that the accident has taken place after the working hours; that Doraisamy had
nothing to do with the lift work; but, he went over there and met with an accident; that the same was also out of time; that it was only due to his
negligence, and under the circumstances, the claim was to be rejected.
Pending that application before the first respondent, the petitioners herein have filed a miscellaneous petition to add the said Vasudevan who,
according to the Association, was a Contractor and to whom the work was entrusted. A counter was also filed. The claim petition was taken up
for enquiry. The first respondent agreed with the case of the claimants and awarded a sum of Rs. 2,71,120/- payable by the Association to the
claimants along with interest. The same is the subject matter of challenge before this Court.
The learned Senior Counsel for the petitioners in short would submit that in the instant case, the specific stand of the petitioners herein before the
first respondent was that the deceased Doraisamy was never employed by them, nor was he working under them; but, the entire civil work was
entrusted to one Vasudevan; that Doraisamy was employed under him; that there is no privity of contract between the petitioners and Doraisamy;
and that they were not liable to make any payment of compensation.
Added further the learned Senior Counsel that in the instant case, when the claimants came with a case that they were entitled for compensation,
first of all, the question by whom it was payable was to be decided; that under such circumstances, a petition was also filed before the first
respondent to implead Vasudevan, the Contractor, to whom the work was entrusted; that though a counter was filed, the said petition was not
given a disposal either of the ways; that under the circumstances, without impleading the said Vasudevan, the said issue could not be decided; that
even without impleadment, the lower authority has proceeded with the matter and passed an award, and hence, it has got to be set aside, and
necessary orders be passed.
Contrary to the above, the learned Counsel for the respondents 2 to 9 would submit that in the instant case, Doraisamy was a mason working
under the petitioners'' Association; that on that day, the accident has taken place while he was working; that it was also during the working hours;
that it was proved by the documentary evidence; that a postmortem certificate was also produced; that immediately, a criminal case came to be
registered; that all these aspects have been weighed by the lower authority; that only in appraisement of the facts and circumstances, the lower
authority has taken a decision that the petitioners'' Association is responsible and liable to pay the compensation and has also fixed the quantum at
Rs. 4,000/- per month as salary, though it was claimed at Rs. 200/- per day as he was a mason working under the petitioners'' Association; that
they were liable to pay compensation since the accident has occurred within the working hours on the day of accident; that it was clearly proved,
and hence, the order of the first respondent has got to be sustained.
The Court paid its anxious consideration on the submissions made, and looked into the materials available and in particular, the order under
challenge. After doing so, this Court is of the considered opinion that the order under challenge has got to be set aside for the simple reason that
when a claim was made by the claimants stating that Doraisamy was employed as mason on the relevant date by the Association, and he died due
to an accident within the working hours, the defence plea was that the entire civil work was entrusted to one Vasudevan, and Doraisamy was
never employed by the Association. Under the circumstances, a pertinent question would be whether on the day when the occurrence took place,
Doraisamy was under the employment of the Association or under Vasudevan. Further, it remains to be stated that pending the proceedings before
the first respondent, a miscellaneous petition was also filed by the Association to implead the said Vasudevan stating the reasons therefor, and a
counter was also filed. It is a matter of surprise to note that the said petition was not given a disposal, nor was it referred to in the impugned order
though it runs to pages. Under the circumstances, even without deciding the question under whom the said Doraisamy was employed on the date
of accident, a proper decision cannot be arrived at all. The first respondent without considering that aspect of the matter, both factual and legal, has
taken a decision, which, in the opinion of this Court, is infirm and illegal, and it is liable to be set aside. Accordingly, it is set aside.
Considering the facts and circumstances, this Court is of the view that they are entitled for compensation; but, the question would be by whom
it has got to be paid. Under the circumstances, it would be fit and proper to remit the matter to the first respondent to decide the said question after
impleadment of the said Vasudevan and after giving him an opportunity to put forth his counter, on merits and in accordance with law. Since the
compensation is payable to the claimants, the first respondent is directed to dispose of the matter as expeditiously as practicable preferably within a
period of two months from the date of receipt of a copy of this order. Accordingly, it is remitted, and this writ petition is ordered. No costs.
Consequently, connected WPMP is closed.