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2014 Supreme(Mad) 4006
High Court of Judicature at Madras
P.R. SHIVAKUMAR, J.
E. Muthu
Versus
M/s. Santhi Enterprises, Chennai & Another
C.M.A. No. 721 of 2011
Decided On : 07-11-2014
For the Appellant :M. Swamikannu, Advocate.
For the Respondent:R2, Nageswaran & Narichania, Advocates.
Headnote:
Employees Compensation Act, 1923 - Section 30 - Motor Vehicles Act, 1988 - Sections 8 and 9 – Employment and service – Motor accident claim – Claim of compensation - Claimant workman is appellant in present appeal - He made claim for compensation on basis of his contention that he was employed as a workman doing work of grinding of motor under first respondent herein on a daily wage apart from annual bonus travelling tea and other allowances and that he sustained injuries in an accident arising out of and in course of employment resulting in complete loss of sight of his left eye and other multiple injuries - He made claim against first respondent herein as his employer and second respondent herein as insurer on file of Commissioner for Employee’s Compensation - First respondent/employer did not appear before Commissioner for Employee’s Compensation and he did not file any objection also - Second respondent insurer alone filed a counter denying averments made by claimant and also contending that claimant should prove that he was a workman under first respondent that he was in receipt of a daily wage and that he sustained injury in an accident arising out of and in course of employment under first respondent - It was also contended therein that claimant should prove his age nature and extent of disability - Apart from above said general denial and contentions intended to cast burden of proof on workman claimant second respondent had also taken a plea that employer namely first respondent had insured only five workman employed under first respondent under a policy bearing Policy that appellant herein claimant was not covered by insurance policy and that employer namely first respondent herein did not inform second respondent insurer of accident in which appellant claimant sustained injuries leading to alleged permanent disability – Held, It is pertinent to note that in Ex.A3-notice issued by appellant herein claimant through his counsel to first respondent that he was a skilled winder of grinding motor and was drawing a salary - In reply issued by first respondent through their counsel it was admitted that appellant herein was employed under first respondent in capacity as stated in notice and that an accident took place - Though it has been stated in notice that he was getting a weekly salary in claim made before Commissioner he had stated that he was drawing daily wages - However in proof affidavit he claimed that he was getting a monthly wage - When his attention was drawn to those aspects and he was cross examined he had stated that he gave figure per day as wages including overtime pay - However he did admit that there was no evidence in proof of same - In light of said admission made by appellant claimant Commissioner for Employees Compensation chose to take minimum wage as per Notification issued by Tamil Nadu Government which was applicable on date of accident for assessment of compensation - According to minimum wages notification monthly basic wage was assessed - Adding a sum as DA total monthly wage was taken - Same cannot be found fault with - In absence of clear evidence and in light of admission made by PW1 that he did not have any document to prove his contention that he was getting wages adoption of minimum wages notified by Government can be perfectly justified - As Court have seen supra finding of Commissioner that appellant claimant suffered only a permanent disability and loss of earning capacity assessment of compensation taking monthly wages and working of compensation payable in case of total permanent disability can be fully justified - Appeal is dismissed
1. This appeal has been preferred under Section 30 of the Employee's Compensation Act, 1923 against the order of the Commissioner for Employee's Compensation-2/Deputy Commissioner of Labour-2 (Employee's Compensation), Teynampet, Chennai-600 006 dated 11.10.2010 made in W.C.No.466/2008.
2. The claimant workman is the appellant in the present appeal. He made the claim for compensation on the basis of his contention that he was employed as a workman doing the work of grinding of motor under the first respondent herein on a daily wage of Rs.200/-, apart from annual bonus, travelling, tea and other allowances and that on 31.12.2007 at about 10.00 a.m., he sustained injuries in an accident arising out of and in the course of employment, resulting in complete loss of sight of his left eye and other multiple injuries. He made the claim against the first respondent herein as his employer and the second respondent herein as the insurer, on the file of the Commissioner for Employee’s Compensation-2, Teynampet, Chennai – 600 006.
3. The first respondent/employer did not appear before the Commissioner for Employee’s Compensation and he did not file any objection also. The second respondent/insurer alone filed a counter denying the averments made by the claimant and also contending that the claimant should prove that he was a workman under the first respondent; that he was in receipt of a daily wage of Rs.200/- and that he sustained injury in an accident arising out of and in the course of employment under the first respondent. It was also contended therein that the claimant should prove his age, nature and the extent of disability. Apart from the above said general denial and contentions intended to cast the burden of proof on the workman/claimant, the second respondent had also taken a plea that the employer, namely the first respondent had insured only five workman employed under the first respondent under a policy bearing Policy No.411901/48/2007/15; that the appellant herein/claimant was not covered by the insurance policy and that the employer, namely the first respondent herein did not inform the second respondent/insurer of the accident in which the appellant/claimant sustained injuries leading to the alleged permanent disability. Based on the above said contentions and also contending that the amount claimed was not made in accordance with the provisions of the Employee's Compensation Act and on the other hand, it was highly exorbitant and imaginary, the second respondent herein pleaded before the Commissioner for Employee's Compensation-2 for the dismissal of the claim as not maintainable.
4. In the enquiry before the Commissioner for Employee's Compensation-2/Deputy Commissioner of Labour-2 (Employee's Compensation), three witnesses including the claimant were examined as PWs1 to 3 and 10 documents were marked as Exs.A1 to A10 and also three documents were marked as Exs.C1 to C3 as Court documents. On the side of the respondents, only one witness was examined as RW1 and only one document was marked as Ex.R1.
5. The Commissioner for Employee's Compensation-2/Deputy Commissioner of Labour-2 (Employee's Compensation), after considering the rival contentions, rendered a finding that the claimant had proved that he was a workman under the first respondent. However holding that the appellant herein/claimant did not prove by adducing sufficient evidence that he was in receipt of a daily wage of Rs.200/- apart from allowances, applied the minimum wage as notified by the Government of Tamil Nadu prevailing as on the date of accident, took the basic pay at Rs.54/- per day (Rs.1,620/- per month), added D.A. of Rs.1684.80 per month and took the monthly wages of the appellant/claimant to be Rs.3,304.80. Based on the evidence that the appellant herein/claimant had lost the eye sight of his left eye totally without any complication affecting the eye sight of the right eye, the Commissioner took the disability to be partial permanent
