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Vetrivel Engineering Enterprise Tiruchirapalli & Another v/s Selvi.Sasikala


Company & Directors' Information:- B S ENGINEERING ENTERPRISE PVT LTD [Strike Off] CIN = U27101WB1986PTC041475

Company & Directors' Information:- SASIKALA PRIVATE LIMITED [Strike Off] CIN = U99999TN1959PTC003863

Company & Directors' Information:- VETRIVEL CORPORATION PRIVATE LIMITED [Strike Off] CIN = U99999TN1958PTC003697

    C.M.A(MD) No.992 of 2010 & M.P.No.1 of 2010

    Decided On, 27 March 2013

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Appellants: T.S. Gopalan, Advocate. For the Respondent: J. Anandkumar, Advocate.



Judgment Text

(Prayer: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, 1923, against the Judgment and Decree in W.C.No.324 of 2007, dated 25.06.2010, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Tiruchirapalli.)

1. The appellants/respondents have preferred the present appeal in C.M.A(MD).No.992 of 2010, against the order passed in W.C.No.324 of 2007, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Tiruchirapalli.

2. The applicant has filed the claim in W.C.No.324 of 2007, claiming compensation of a sum of Rs.5,00,000/- from the opposite parties for the injuries sustained by her arising out of and in the course of doing her work under the employment of the opposite parties. It was submitted that the applicant was working as a helper in the opposite party's firm. On 17.05.2007, operating of the grinding machine viz., Sankar had asked her to hold a iron rod, at one end, in order to facilitate cutting of the road into small pieces through use of the grinding machine. While so, when the said Sankar was in the process of cutting the rod, he had moved the rod at a high speed and in the process, both the hands of the applicant was caught in the grinding machine. As a result, the applicant sustained fracture of bones in her right arm, extending from her right wrist upto her shoulder level and her small finger in the left hand was also crushed. She was immediately taken to K.M.C Hospital, Trichy, wherein she received treatment. At the time of accident, the applicant was aged 23 years and was getting a monthly income of Rs.2,100/- and a daily batta of Rs.10/-. After the accident, due to the injuries sustained by her, she had sustained permanent disability and not able to do her work as she used to do before the accident. Hence, the applicant has filed the above claim against the opposite parties.

3. The 2nd opposite party is the owner of the 1st opposite party firm. The opposite parties, in their counter have submitted that they had employed the applicant in their firm in January 2007, in order to clean the waste materials, which accumulate at their work spot while operation of the machines and that such work should be carried out before operation of the machines. It was submitted that the workers in their firm have to use safety equipments while doing their work. It was submitted that the applicant occasionally used to do her cleaning work, during the period of operation of machines and that their Manager Thiru.Thuraimanickam, had warred her on several occasions not to do her cleaning while the machines were being operated. It was submitted that on 17.05.2007, at about 04.30 p.m., the applicant had proceeded to do her cleaning work while the machines were being operated and not wedding the warning given by the Machine Operator Thiru.Shankar and had also failed to use the safety equipments and that the accident had occurred only due to the negligence of the applicant. It was submitted that the opposite party's firm had admitted her in KMC Hospital and paid for the medical treatment taken by her. It was submitted that the applicant had not sustained any disability in the said accident. It was also submitted that the opposite party is willing to allow her to do her job in the firm. It was submitted that the applicant was a cleaner and not a helper. It was submitted that the claim was excessive.

4. PW.1, the applicant had adduced evidence, which is corroborative of the statements made by her in the claim and in support of her evidence, she had marked Exs.P1 to P10 namely: Ex.P1-copy of complaint sent by applicant to the Inspector of Police and other Officers dated 05.07.2007; Ex.P2-acknowledgment card; Exs.P3 and P4-identity card; Ex.P5-discharge summary issued at K.M.C Hospital; Ex.P6-Lawyer's notice sent by applicant; Ex.P7-receipt; Ex.P8-reply notice given by opposite party; Ex.P9-disability certificate; Ex.P10-school transfer certificate.

5. The Deputy Commissioner of Labour framed three issues for consideration in the case namely:

(1) Was the applicant injured in the accident which arose out of and in the course of doing her duty under the employment of the opposite party;

(2) What is the loss of earning capacity sustained by the applicant?;

(3) What is the age and income of the applicant at the time of accident?.

6. On scrutiny of counter of the opposite party, it is seen that the opposite party had stated that the cleaner has to carry out the cleaning duties before 09.00 a.m., i.e., prior to starting of the machines and that all the waste surrounding the machines had to be cleaned. On scrutiny of the lawyer's notice sent by the opposite party to the applicant on 02.08.2008, it is seen that the opposite party had stated that the cleaning work should be started at the end of the day i.e., at 05.00 p.m., after all the machines had been stopped. Hence, the Deputy Commissioner of Labour observed that contradictory statements had been made by the opposite party regarding the time at which cleaning had to be carried out. Hence, the Deputy Commissioner opined that though the applicant was not a skilled helper, she was doing several cleaning work and also removing waste surrounding the machines and was also working as a general helper.

7. Though it was contended that the applicant had not heeded the advice given by their Manager, Thiru.Duraimanickam and the Machine Operator, Sankar and had proceeded to do her cleaning work while the machines were being operated and that she was also not using any safety equipment's, the Deputy Commissioner of Labour observed that the above persons had not been examined by the opposite party to establish its contentions. The Deputy Commissioner further observed that the opposite party had not mentioned the type of safety equipment's given the applicant. The Deputy Commissioner further observed that the opposite party had also not stated whether the safety instruction to employees of their firm had been displayed prominently in their firm and that no such copy of instructions had been furnished to prove the above aspect. Hence, the Deputy Commissioner of Labour, on opining that the opposite party had not proved that the applicant had been wilfully disobedient and had wilfully disregarded the rules regarding safety equipment's rejected the contentions laid down by the opposite party that the accident had happened only due to the wilfully disregard of safely rules and negligence of the applicant and hence held that the injuries sustained by the applicant in the accident arose out of and during the course of doing her duty under the employment of the opposite party.

8. PW.2, Dr.Ravi had adduced evidence that he had examined the applicant and also taken X rays and had observed that the applicant had sustained fracture of bone below her right shoulder and that a surgery was done and steel plates were fixed and that the fractured bones had united. He deposed that due to the fracture of bone, the upward movement of the applicant's right shoulder extends from 0" to 105" only and not firm 0" to 180" and the swiveling movements extends from 0" to 25" only and not from 0" to 60". He further deposed that she had also sustained fracture of two bones in her right forearm and that surgery had been conducted and steel plates had been fixed and that the bones in the fractured area has not united. He deposed that due to this, the upward swing of the applicants right wrist extends from 0" to 15" only and not 0" to 45" and that the downward movements extend from 0-30" only and the swiveling movements extends from 0"-110" only. He deposed that the middle finger in her left hand hand had been crushed and was amputated and due to this, she would not be able to left weights, or do any hard labour. He deposed that the applicant had sustained 40% disability and in support of his evidence, he had marked Ex.P9-disability certificate.

9. It was contended on the side of the opposite party that as per the workmen Compensation Act, the disability sustained by the applicant due to amputation of her middle finger in her left hand should only be taken as 9%. It was contended that the injuries sustained by the applicant in her right hand does not in any way affect her work as a cleaner and that she had not sustained any disability on this Court.

10. The Deputy Commissioner further opined that the opposite party had not expressed their willingness to pay compensation to the applicant after the accident and as such opined that the offer of employment made by them to the applicant has been done with an ulterior motive to evade payment of compensation. Though the Doctor had stated in his evidence that the applicant would be able to work for long periods of time and that she would not be able to do any hard labour. He had adduced evidence that if the applicant had taken an effective medical treatment, her disability would have been reduced by 4% to 5%. Hence, the Deputy Commissioner on holding that the loss of earning capacity due to disability sustained by applicant in her right hand was 40% and that on her left hand was 9% held that the total disability sustained by the applicant was 45%. The Deputy Commissioner of Labour, held that the monthly income of the applicant was Rs.3,038/- as per the minimum wages fixed by the Government. On scrutiny of Ex.P10-school transfer certificate, it is seen that the date of birth of applicant was 09.05.1985 and as such it was seen that the applicant was aged 22 years at the time of accident. Hence, the Deputy Commissioner, after adopting a multiplier of 221.37, awarded a sum of Rs.1,81,580.96/- is rounded off Rs.1,81,581/- (Rs.3,038/-x60/100x221.37x45/100) as compensation to the applicant under the head of loss of income due to disability of 45%. The Deputy Commissioner directed the 2nd opposite party being the owner of the 1st opposite party firm to pay the said compensation to the applicant within 30 days from the date of its order, failing which he was directed to pay the said sum together with interest at the rate of 12% per annum from the date of accident till date of deposit of compensation.

11. Aggrieved by the award passed by the Deputy Commissioner of Labour, the 1st and 2nd opposite parties have preferred the present appeal. The learned counsel for the applicants has contended in his appeal that the authority failed to take note the admission of the respondent in W.C.No.324 of 2007, that she was not expected to clean flour, when the machines were in operation and therefore the authority ought to have rejected the claim of the respondent in terms of section 3(1)(b)(ii) of the Workman Compensation Act. It was contended that the authority ought to have rejected the evidence of PW.2 and Ex.P9 on the sole ground that the respondent was in a position to carry on her normal work and that she offered herself for work with the appellant herein which clearly indicates that she was hale and healthy and did not suffer loss of earning capacity to the extent of 36% as assessed by the authority. It was also contended that the authority was not justified in enhancing the monthly salary of the respondent merely because compensation can be fixed on minimum wages, whenever the actual last drawn salary was less than the minimum wages. Hence, it was prayed to set aside the order passed by the Deputy commissioner of Labour, Trichy.

12. The learned counsel for the respondent/applicant submitted that the accident had occurred during the course of employment. The Machine Operator viz, Shankar ordered the respondent to help him to cut the rod. While she was in the process of holding the rod, the operator Shankar had suddenly pilled the rod and as a result, the respondent's hand was caught in the machine due to which she sustained bone fractures. The applicant herein took her to KMC Hospital, Trichy for treatment, wherein a surgical operation had been conducted on her hand. The 1st respondent had been paid a sum of Rs.2,100/- as monthly salary and besides this she was paid a sum of Rs.10/- as daily batta. Therefore, the employer-employee relationship has been established and the occurrence had taken place in the course of employment. The Doctor had assessed the disability at 45%. The respondent's age was 22 years and after considering all aspects, the Deputy Commis

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sioner of Labour had assessed the said compensation. 13. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsel on either side, this Court does not find any discrepancy in the conclusions arrived at regarding employer-employee relationship and that the accident had taken place in the course of employment. This Court also does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. Therefore, this Court is not inclined to interfere with the said order. As per Court records, it is seen that the entire compensation amount had been remitted before the Commissioner of Labour. 14. Now, it is open to the respondent/applicant to withdraw her entire compensation amount with accrued interest, if any, lying in the credit of W.C.No.324 of 2007, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Tiruchirapalli, after filing a memo, along with a copy of this order and after identification of the applicant, by her counsel. 15. In the result, the above appeal is dismissed. Consequently, the judgment and decree passed in W.C.No.324 of 2007, on the file of the Deputy Commissioner of Labour for Workmen's Compensation, Tiruchirapalli, dated 25.06.2010, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
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