At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
For the Appellant: M. Krishnamoorthy, Advocate. For the Respondent: ----
(Prayer : Civil Miscellaneous Appeal filed under Section 30 of Workmen's Compensation Act, against the order dated 3.8.2012 made in W.C.No.383 of 2006 on the file of the Court of Commissioner for Workmen's Compensation (Deputy Commissioner of Labour-I) at Vellore.)1. The Award dated 03.08.2012 passed in W.C.No.383 of 2006 is under challenge in the present Civil Miscellaneous Appeal.2. The learned counsel appearing on behalf of the appellant mainly contended that the appellant company is not liable to pay compensation. The Substantial Question of law raised in the appeal on hand is that the insurer is not expected to cover the risk of the person and therefore, there is no coverage and accordingly, the appeal is to be allowed.3. The respondent filed an application, seeking compensation under the Workmen Compensation Act on the ground that on 28.7.2006 at 08.45 p.m, the deceased was travelling as a Cleaner-cum-loadmen in the vehicle, which met with an accident bearing Registration No.TN-23-AB-1812 and the said vehicle was loaded with machine parts. When the vehicle was moving on Vellore to Chennai Road, the vehicle met with an accident and the deceased fell down along with the iron load, sustained fatal injuries and died on the spot.4. The 1st respondent is the widow and the respondents 2 and 3 are the children of the deceased. The Deputy Commissioner of Labour adjudicated the issues with reference to the documents and evidences produced by the respective parties. The factum regarding the accident was established. The deceased was working at the time of accident and therefore, the accident occurred during the course of employment. When all these factors were established, the Deputy Commissioner of Labour passed an award, granting a compensation of Rs.4,17,918/- along with the interest at the rate of 12% per annum.5. The learned counsel for the appellant contended that the appellant is not liable to pay compensation as the deceased was travelling as a loadmen and was sitting in the rear side and in the particular vehicle, the seating capacity was provided only for driver. Thus, the Deputy Commissioner of Labour has not considered Ex.P4/ the copy of the policy, where there is no cover for the deceased loadmen.6. This Court is of the considered opinion that with reference to the liability, the plea must be taken before the trial Court. In the present case, the defense has not taken regarding the liability nor established before the trial Court. In the absence of any pleadings in particular and evidence, this Court cannot consider the said ground at the appeal stage as it was not factually established. The trial Court arrived a conclusion that the factum regarding the accident was established and the policy was in force and the deceased died during the course of employment. Thus, the liability was fixed on the appellant and this Court is of the considered opinion that in the absence of any evidence or proof and a finding with reference to such defense, this Court cannot consider the ground raised in the present appeal and the question of law raised, is also with reference to the facts and thus, the appeal deserves no merit consideration.7. Accordingly, the Award dated 03.08.2012 passed in W.C.No.383 of 2006 stands confirmed and consequently, the Civil Miscellaneous Appeal in C.M.A.No.115 of 2021 stands dismissed. The respondents/claimants are permitted to withdraw the entire award amount with accrued interest by filing an appropri
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ate application and the payments are to be made through RTGS. As far as the 3rd respondent minor is concerned, the portion of the compensation awarded in favour of the minor is directed to be deposited in any one of the nationalised Bank in an interest bearing deposit scheme till the minor attains the age of majority. No costs. Consequently, connected miscellaneous petition is closed.