At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE G.R. SWAMINATHAN
For the Appellant: S. Seenivasagam, Advocate. For the Respondent: S. Laksmanan, Advocate.
1. Heard the learned counsel on either side.
2. The employer has filed this appeal questioning the award passed under the Employees Compensation Act, 1923. The respondent herein met with an accident. During the course of his employment, two of his fingers got crushed. The Commissioner of Workmen's Compensation passed an award dated 20.10.2015 directing the employer to pay a sum of Rs. 1,30,990/-. Aggrieved by the same this appeal has been preferred.
3. This appeal is admitted. The following substantial questions of law arising for consideration:-
"A) Whether an "Unpapid Apprentice" would come under the ambit of "workman" under Section 2(n) of the Workmen's Compensation Act?
B) Whether a person never engaged for "wages" can claim compensation under the Workmen's Compensation Act?
C) When the Respondent/Petitioner incurred injury due to his gross negligence and grossly disregarding of safety measures and venturing in a running devise was a contributory negligence on the part of the Respondent/Petitioner and prohibited from claiming compensation under Section 3 of the Workmen's Compensation Act, whether allowing of compensation is within law?"
4. The learned counsel appearing for the appellant would contend that the respondent was only an unpaid apprentice and that therefore his petition under the Employees Compensation Act is not maintainable. Though the respondent herein cannot said to be an Act Apprentice, still it is open to this Court to draw inspiration from section 16 of the Apprentices Act, 1961. Section 16 of the said Act states as follows:
"If personal injury is caused to an apprentice, by accident arising out of and in the course of his training as an apprentice, his employer shall be liable to pay compensation which shall be determined and paid, in accordance with the provisions of the Workmen's Compensation Act, 1923."
5. In this case, the respondent has pleaded that he was employed at a daily rate of Rs. 120/- by the appellant herein. It is only the case of the appellant that he was an unpaid apprentice. Even assuming that the respondent was an apprentice, this Court hold that he can very well maintain the claim for compensation under Workmen's Compensation Act, 1923. Therefore, the 1st substantial question of Law in answered against the respondent.
6. The learned counsel appearing for the respondent would contend that the employer is not liable since the apprentice disregarded safety measures and quote the danger and invited the accident in question. It is true that section 3 of the Employees Compensation Act, 1923, exempts the employers from liability under such circumstances. But in order to exempt the employer from liability, will-full conduct on the part of the employee must be shown. Even according to the employer, the respondent is not a seasoned worker. He was after all an apprentice to go for training. It may be that he did not adhere to the safety standards. But that is not sufficient to characterise his conduct and will-full. The employer has not been able to show that the respondent has been will-full in his conduct. I therefore held that the Commissioner for workmen's Compensation rightly fastened the liability on the employer. It is the fact that the accident happened and it is the fact that the employee suffered injuries. The Commissioner is merely applied the statutory formula and awarded a compensation of Rs. 1,30,990/-. The awarded amount cannot be said to be excessive. I see no reason to interfere. The award dated dated 20.10.2015, made in in W.C. No. 8 of 2011 on the file of the Commissioner of Workmen's compensation Act (Deputy Commissioner of Labour) Madurai is confirmed.
7. The appellant is directed to deposit the entire compensation amount of Rs. 1,30,9
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00/- with interest at the rate of 8% per annum with costs, within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit, the claimant is entitled to withdraw the same, less the amount already withdrawn by him, if any. 8. This Civil Miscellaneous Appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.