Secretary, St. John Sangam vs Sengamalai and Others

C.S. Karnan, J.—The appellant/1st respondent has preferred the present appeal in CMA (MD). No. 629 of 2000, against the order passed

in W.C. No. 103 of 1996, on the file of the Commissioner of Workmen Compensation and Deputy Commissioner of Labour, Trichy. The short

facts of the case are as follows:-

The applicants, who are the parents of the deceased Pitchaimuthu, have filed a claim in W.C. No. 103 of 1996, claiming a compensation of Rs.

2,24,000/- from the respondent, for the death of the said Pitchaimuthu in an accident caused during the course of his work and while doing his

work under the employment of the respondents. It was submitted that the deceased Pitchaimuthu was employed as a cleaner of the 1st

respondents tractor bearing registration No. TN-45Y-0694 and Trailer bearing registration No. TN-45Y-0695. It was submitted that on

16.9.1995, when the (deceased) was sitting in the trailer loaded with sugarcane and when the tractor was driven by the 2nd respondent and after

the sugarcane was weighed, the driver of the tractor, in his hurry to unload the sugarcane, drove the tractor at a high speed and in a rash and

negligent manner, in order to overtake other vehicles. Due to this, the (deceased) Pitchaimuthu fell down and sustained grievous injuries. He was

initially admitted at Perambalur Government Hospital, as an inpatient but inspite of medical treatment, he succumbed to his injuries on 25.9.1995.

At the time of accident, the deceased was aged 20 years earning Rs. 2,000/- per month. Hence, the applicants, who are dependants on the

income of the deceased Pitchaimuthu have filed a claim against the 1st and 2nd respondent, who are the owner and driver of the said tractor

involved in the accident.

The 1st respondent, in his counter had denied the averements in the claim that the deceased had died during the course of his employment and

while he was travelling in the tractor on 16.9.1995. He had submitted that he owns the tractor-trailer and had denied the (deceased) Pitchaimuthu

was employed by him. The averments in the claim regarding age, income and occupation of (deceased) was also not admitted.

The 2nd respondent, in his counter has submitted that the (deceased) Pitchaimuthu had not worked as an employee under the 1st respondent.

He admitted that he was employed as a driver of the tractor by the 1st respondent. He submitted that on the day of accident, he had driven the

tractor at a high speed of 26 km/hour and that as the trailer was loaded with sugarcane, it was not possible to driver the tractor at high speeds. It

was submitted that when he had stopped the tractor, in order to weigh the sugarcane loaded in the trailer, the (deceased) Pitchaimuthu, without

taking his permission had to get on top of the trailer and invited the accident. It was submitted that the deceased Pitchaimuthu had not worked as a

cleaner in the said tractor-trailer and as such, the claim has to be dismissed.

On the applicants side, two witnesses were examined and seven documents were marked as Exhibits P-1 to P-7 namely Exhibit P-1-F.I.R;

Exhibit P-2-post mortem report; Exhibit P-3-Motor Vehicle Inspectors Report; Exhibit P-4-charge sheet; Exhibit P-5-lawyer''s notice; Exhibit P-

6-acknowledgement card and Exhibit P-7-reply notice. On the respondent''s side, four witnesses were examined and three documents were

marked as Exhibits R-1, R2 and R3 namely Exhibits R-1 and R-2-attendance register and Exhibit R-3-salary register.

The Commissioner of workmen compensation framed three issues for consideration in the case namely: (1) Did the (deceased) Pitchaimuthu die

in the accident arising during the course of doing his duty under the employment of the 1st respondent?; (2) If, so what is the quantum of

compensation which the petitioners are entitled to get and (3) Who is liable to pay compensation?.

P.W. 1, Senkamalai, the father of the deceased had adduced evidence that on 16.9.1995, his (deceased) son had travelled as a cleaner in the

1st respondents tractor and trailer, which was carrying a load of sugarcane to Erraiyur Sugar Mill and that after the sugarcane was weighed, the

2nd respondent, who had driven the tractor, had driven the tractor at a high speed and in a rash and negligent manner in order to overtake a

vehicle going ahead of it and as a result his (deceased) son, who was sitting on top of the sugarcane load, had fallen down and sustained grievous

injuries, resulting in his death.

P.W. 2, C. Narayanasamy, had adduced evidence that he was working as an Assistant at the Nehru senior Secondary School and that his

school is situated inside the Erraiyur Sugar Mill Complex. He adduced evidence that on 16.9.1995, at about 8 a.m., when the vehicles were being

weighed, he had seen the tractor bearing registration No. TN-45Y-0694 and trailer bearing registration No. TN-45Y-0695, carrying sugarcane

load, being driven at a high speed and that the tractor was driven by one Balu. He deposed that the tractor was owned by M/s. Johns Society and

that he had seen the cleaner i.e., the (deceased) Pitchaimuthu who was on top of sugarcane load falling down from the said vehicle.

R.W. 1, Osariyoo Jayaraj, the 1st respondent had adduced evidence that he had employed driver, cleaner and conductor in his firm and that the

said tractor involved in the accident had been driven by Balu and that the cleaner of the tractor was one Ponnusami and that the driver and cleaner

would start their duty only after signing the attendance register. He deposed that on 16.9.1995, the (deceased) Pitchaimuthu had not worked as a

cleaner in their firm.

The 2nd respondent namely Balu had adduced evidence that he was working as a driver in the St. John Association and that on 16.9.1995, he

had worked as a driver of the tractor and taken sugarcane load from Fathimapuram to Erraiyur and that the cleaner of the tractor was one

Ponnusami. He deposed that the tractors used to be parked in a series, one behind the other and that it is not possible to overtake any tractors. He

deposed that he had handed over the tractor to the cleaner Ponnusami and also given him the token and come home. He deposed that he had

returned against at 3.00 p.m., and taken sugarcane load to Fathimapuram and that the tractor had not been involved in any accident.

R.W. 2, B. Shinnayya, had adduced evidence that he was working as a fitter at Perambalur Sugar mills at Erraiyur and that on 16.9.1995,

when he was working in a crane close to where the sugarcane was weighed, he had no witnesses any accident. He had deposed that at the place

where the sugarcane was weighed they would allow the tractors in a serial order according to the token granted to them. He deposed that if an

accident had occurred, it would be entered in a register of the respondent and the injured person would be given treatment at the discrepancy in

the mill. He deposed that the tractor bearing registration No. TN-45Y-0694 was brought to the mill by the cleaner namely Ponnusami and that the

driver of the said tractor was not available. He deposed that only the cleaner i.e., Ponnusamy had driven the said tractor.

R.W. 3, Ponnusami, adduced evidence hat he was working as a cleaner in the 1st respondents firm and that he and the driver Balu had

proceeded on the tractor from Fathimapuram to Erraiyur to unload sugarcane load and that the driver of the tractor on reaching the mill had

informed him that as his wife is sick, he has to go to his house and that the driver had informed him that he would send his brother shortly. He

deposed that, as per the tokens issued, sugarcane load was offloaded from their tractor was not involved in any accident on 16.9.1995.

It is seen from the reply notice sent by the 1st respondent to the notice sent by the petitioner mat the 1st respondent had submitted that the said

Pitchaimuthu had travelled in his tractor as he was a friend of the driver of the tractor and not as an employee of his firm. However, from the

counter of R.W. 2, the driver i.e., Balu it is seen that he had not referred to the (deceased) Pitchaimuthu, as his friend. In contrast, he had

submitted that when the tractor was stopped at the mill, in order to weigh the sugarcane load, without his knowledge and caused the accident.

However, R.W. 2 had deposed in his evidence, that no accident had occurred and that he had handed over the tractor to the cleaner Ponnusamy

and left for his home and that he had returned at 3.00 p.m., to drive back the tractor. However, it is seen from the evidence of R.W. 3, Ponnusamy

that the said tractor, after unloading the sugarcane, had been driven back by the brother of the driver Balu and not by Balu. Hence, the Tribunal

observed that contradictory statements had been made by the cleaner and driver.

Further, R.W. 2 had stated during his cross examination that he had not given any information to the lawyers of the firm and that he is not

aware of the statements made in his counter as the management of his firm had prepared the said counter and had taken his signature in the said

counter. The Tribunal, on scrutiny of the attendance register marked as Exhibits R-1 and R-2, was not inclined to accept them as genuine as

various errors had irregularities were seen in entry of names and signatures contained in them. On scrutiny of salary registers marked as Exhibit R-

3, it was seen that there were corrections in the name and income listed in the first two pages. Hence, the Tribunal on scrutiny of the oral and

documentary evidence and observing that contradictory claims had been made on the side of the respondents held that the (deceased)

Pitchaimuthu had died during the course of doing his work as a cleaner in the 1st respondent''s lorry.

The Tribunal, on holding that the notional income of a cleaner as per the minimum wages fixed by the Government was Rs. 1,460/- and

adopting a multiplier of ''225.22'' as was relevant to the age of the deceased (19 years) awarded a compensation of Rs. 1,64,411/- (50/100 x Rs.

1,460 x 225.22) to the petitioners under the head of loss of income and directed the 1st respondent to deposit the said sum within 30 days from

the date of receipt of their order failing which the 1st respondent was to pay the said sum together with interest at the rate of 12% per annum from

the date of filing the petition till date of payment of compensation.

Aggrieved by the award passed by the Tribunal, the 1st respondent/Secretary, St. John Sangam, Perambalur District had preferred the present

appeal. The learned counsel for the appellant has contended in the appeal that the Commissioner failed to see that the deceased Pitchaimuthu is not

at all an employee of the appellant and there is no employer-employee relationship. It was contended that the Commissioner failed to see there was

no such accident as alleged by the claimants on 16.9.1995 and therefore, the Commissioner ought to have rejected the claim. It was contended

that the conclusions of the Commissioner with regard to Exhibits R-1 to R-3 are not supported by any evidence and the conclusions arrived against

the appellant cannot be sustained. The order of the Commissioner giving much reliance to the complaint given to the Police by the claimants cannot

be sustained in law and it is only an allegation and the same has not been supported by any evidence. It was submitted that the claim is excessive

and has to be set aside.

On considering the facts and circumstances of the case and on perusing the impugned award of the Commissioner of Workmen

Compensation, and on perusing the grounds raised in the appeal, this Court does not find any discrepancy in the said award. Further, this Court is

of the view that the Tribunal had framed necessary issues and have decided the case on the basis of oral and documentary evidence. As such, the

employer-employee relationship has been established. Therefore, this Court further directs the Deputy Commissioner of Labour, Trichy to send

notice to the applicants and disburse the said compensation amount with accrued interest thereon, if any, as per his findings, after identification

made by the learned counsel, who appeared on behalf of the applicant. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently,

the order passed in W.C. No. 103 of 1996, on the file of the Commissioner of Workmen Compensation and Deputy Commissioner of Labour,

Trichy, dated 31.12.1998, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.