Tamil Nadu Civil Supplies Corporation Limited vs Sagayanathan

P.R. Shivakumar, J.—This Civil Miscellaneous Appeal has been brought forth u/s 30 of the Workmen''s Compensation Act, 1923 by the

opposite party in W.C. No. 82 of 1995 on the file of the Commissioner for Workmen''s Compensation (Deputy Commissioner of Labour), Trichy,

challenging the award of the Commissioner dated 05.09.1996 by which a sum of Rs. 50,955/- was directed to be paid as compensation to the

respondent herein together with an interest at the rate of 6% per annum from the date of accident till realisation.

The respondent herein had made a claim before the Commissioner for Workmen''s Compensation in W.C. No. 82 of 1995 praying for an

award of a sum of Rs. 1,36,120/- as compensation for the alleged injury sustained by him in an accident arising out of and in the course of his

employment which according to him led to permanent disability, based on the following allegations:

The respondent/claimant was a workman employed under the Tamil Nadu Civil Supplies Corporation Limited. He was engaged as a loadman

under the Tamil Nadu Civil Supplies Corporation Godown at Izhaiyur. Loadmen worked under the direct control of the Bill Clerk (gl;oay; vGj;jh;)

who acted as the representative of the Tamil Nadu Civil Supplies Corporation at the Direct Levy Centres. The claimant was employed as a

loadman by the Tamil Nadu Civil Supplies Corporation through its Bill Clerk of Izhaiyur Levy Centre from 01.09.1985 and was paid an average

remuneration of Rs. 60/- per day. On 06.01.1992 at about 12.30 p.m. while the claimant was engaged in loading the paddy bags in a lorry from

the godown at Izhaiyur Levy Centre, the steps made of the paddy bags to claim on the lorry collapsed. As a result of the same, a heavy paddy bag

weighing 71 kilograms that was on the back of the claimant slipped on the back side of his neck leading to fracture of the vertebral column.

Pursuant to the accident, he took treatment at Raja Mirasudharar Hospital, Tanjore for 11 days as an inpatient and thereafter for about 110 days

as an outpatient. Again on 31.03.1992 he was admitted in the very same hospital as an inpatient and discharged on 02.04.1992. Subsequently, he

had treatment in a private hospital at Kumbakonam. Despite proper treatment, the injuries sustained by him resulted in permanent disability to the

extent of 75%. Since the accident arose out of and in the course of employment under the Tamil Nadu Civil Supplies Corporation, as the employer

of the respondent/claimant, the Tamil Nadu Civil Supplies Corporation (appellant)/opposite party should be directed to pay the amount claimed in

the claim petition as compensation along with a future interest at the rate of 18% per annum from the date of accident.

The claim was resisted by the appellant/respondent before the lower authority contending that the respondent/claimant was not a workman

under the appellant Corporation; that the loadmen available near the Levy Centres will be engaged depending upon the requirement of their service

as and when the necessity would arise; that there was no connection between the appellant and the accident in which the respondent/claimant

sustained injuries and that the appellant Corporation was not liable to pay any compensation to the respondent/claimant.

The Commissioner for Workmen''s Compensation conducted an enquiry in which four witnesses were examined and eight documents were

marked on the side of the respondent/claimant. Only one witness was examined and no document was marked on the side of the

appellant/respondent.

At the conclusion of enquiry, on a thorough scrutiny of the evidence adduced on either side and the oral representations made, the lower

authority, namely, the Commissioner for Workmen''s Compensation held that the respondent herein, the petitioner in W.C. No. 82 of 1995 was a

workman under the appellant Corporation, believed the petitioner''s case regarding the alleged accident arising out of and in the course of his

employment under the appellant Corporation on 06.01.1992 at about 12.30 p.m., assessed the age and income of the respondent/claimant at 30

years and Rs. 1,000/- respectively and awarded a sum of Rs. 50,955/- as compensation using the formula provided u/s 4 of the Workmen''s

Compensation Act, 1923. Now the said award is under challenge in this civil miscellaneous appeal.

This Court heard the arguments advanced by Mr.R.Subramanian, learned Counsel on behalf of the appellant and also by Mr.Jin Jeferrin Jose,

learned Counsel on behalf of the respondent and paid its anxious considerations to the same.

The award passed by the Commissioner for workmen''s compensation is sought to be challenged in this civil miscellaneous appeal u/s 30 of the

Workmen''s Compensation Act, 1923. An appeal from the award of the Commissioner for Workmen''s Compensation can be preferred u/s 30 of

the Workmen''s Compensation Act only on a substantial question of law. In the instant case, at the time of admission of the civil miscellaneous

appeal, no substantial question of law was framed. But the learned Counsel for the appellant, in his arguments would contend that even though no

substantial question of law was framed at the time of admission of the appeal, the same could be framed at the time of disposal of the appeal and

suggested the following substantial question of law to be decided in this appeal. The substantial question of law projected by the learned Counsel is

as follows:

Whether a claim against the principal employer in the absence of the contractor or immediate employer is maintainable?

After going through the records, this Court is unable to agree with the contention of the learned Counsel for the appellant that such a substantial

question of law has arisen in this appeal. The definite case of the respondent/claimant before the lower authority/Commissioner for Workmen''s

Compensation was that he was a workman employed under the appellant Corporation through its representative, namely, the Bill Clerk, who

managed the affairs of the appellant Corporation at the concerned Levy Centre and that through the said Bill Clerk, he was paid his wages. In fact,

besides examining himself and the Union leader to show the factum of engagement as a loadman by the Bill Clerk on behalf of the appellant

Corporation, the respondent/claimant also examined the then Bill Clerk Thiru. Vethachalam as P.W.4 to substantiate his case. On the other hand,

this particular factual aspect pleaded by the respondent/claimant was denied by the appellant Corporation which contended, inter alia, that there

was no connection between the appellant Corporation and the respondent/claimant; that the alleged accident in question did not occur during the

course of his employment under the appellant Corporation and that hence the claim made by the respondent/claimant should be dismissed. It was

the further contention of the learned Counsel for the appellant before the lower authority that the accident in question itself was not true and that the

same could be seen from the fact that no complaint was made to the police and no criminal case was registered. All the above said objections

raised before the lower authority are not objections on the question of law. They are the rival pleadings made before the lower authority regarding

the factual aspect of the case.

The lower authority, the Commissioner for Workmen''s Compensation, after analysing the evidence adduced on both sides, gave a finding on

the question of fact regarding the engagement of the respondent/claimant as a loadman by the Bill Clerk of the appellant Corporation. By no stretch

of imagination, the said finding will assume the character of a question of law, much less a substantial question of law. As rightly pointed out by the

learned Counsel for the respondent/claimant, the learned Counsel for the appellant for the sake of maintaining the appeal has chosen to suggest an

imaginary question of law. The same is not based on the plea of defence taken by the appellant/respondent before the lower authority. Nowhere in

the counter statement which runs to one and half pages, it has been stated that there was a contractor or immediate employer by whom alone the

respondent/claimant was employed. The defence taken in the counter statement filed before the lower authority was total denial of employer -

employee relationship either as an immediate employer or as the principal employer. That being so, without pleading any amount of evidence

adduced cannot be looked into. In this case, simply relying on the evidence of P.W.1, who said that the day''s remuneration will be paid by the

Corporation to the Union leader and the union leader in turn would distribute the same among the loadmen, the above said arguments seems to

have been advanced by the learned Counsel for the appellant. Clear evidence has been adduced to the effect that it was the Bill Clerk as the

representative of the Corporation who engaged the loadmen including the respondent/claimant for doing the work on behalf of the Corporation and

that the wages were also paid by the Bill Clerk. The case of the respondent/claimant is also quite clear that the loadmen were working under the

supervision of the Bill Clerk of the respondent Corporation. Simply because piece rate wages were paid through the union leader of the workman,

it does not mean that the union leader will become the immediate employer. Added to the above said aspect, there is the failure on the part of the

appellant Corporation to make such a specific plea before the lower authority that there was an immediate employer through whom only the

respondent/claimant was engaged as a loadman and that the claim made against the appellant Corporation in his capacity as the principal employer,

without impleading the immediate employer, was not maintainable. The said plea seems to be one taken for the first time in the appellate forum

which is not legally sustainable.

For all the reasons stated above, this Court comes to a definite conclusion that the alleged substantial question of law suggested by the learned

Counsel for the appellant does not arise in this appeal and hence this appeal cannot be maintained on the said question of law.

With regard to the other findings of the lower authority, there is no controversy that they are only findings of fact which cannot be challenged in

this appeal unless the appellant is able to point out a substantial question of law on which the appeal can be maintained. Therefore, this Court is of

the considered view that the challenge made to the award passed by the Commissioner for Workmen''s Compensation in this appeal is not

maintainable; that the same does not deserve consideration of this Court and that hence the appeal shall fail and the same deserves to be dismissed

with costs.

In the result, this Civil Miscellaneous Appeal is dismissed with costs.