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Khikhram vs Raj Kumar @ Kanshiram on 3 February, 2017

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1. The present Writ Petition under Article 226/227 of the Constitution of


India has been filed assailing the order dated 31.08.2016 passed by the
Commissioner, Employee's Compensation, Labour Court Janjgir-
Champa in Case No. 05-ECA/COC-1 B/16-F Claim. Vide the impugned
order dated 31.08.2016 learned Commissioner has rejected the preliminary
objection filed by the present Petitioner in respect of the maintainability of
the claim.

2. The brief facts relevant for the adjudication of the instant case is that the
Respondents in the present case are the mother and father of the deceased
Lalu @ Gajendra Kashyap who met with an accidental death on
07.12.2011 when he was working as driver under the present Petitioner.
The Respondents initially filed claim case before the Motor Accident
Claims Tribunal, Janjgir - Champa which was registered as MACC No.
22/2012. The said case finally got rejected on 30.08.2014 on the ground
that the claimants are not entitled for any compensation on account of the
fact that the accident arose because of negligence on part of the deceased
himself as it was established before the Tribunal that the deceased was
driving the tractor in a rash and negligent manner, thus disentitling the
claimants for the compensation. Subsequently, Respondent claimants filed
a claim petition under Section 163 (A) of the Motor Vehicle Act before the
same Tribunal on 19.11.2014. Meanwhile the Respondents also filed a
claim Petition before the Commissioner, Employee's Compensation at
Labour Court, Janjgir - Champa. Subsequent to the Registration of the said
claim case before the Labour Court under
the Employee's Compensation Act, the Claim case filed under Section
163(A) before the Motor Accident Claims Tribunal, Janjgir-Champa was
withdrawn by the Respondents on 11.1.2016. The fact that the Respondent
had filed a claim case under Section 166 and as also under 167(A) was not
disclosed before the Commissioner, Employee's Compensation Act.

6. Shri Ravindra Sharma, Counsel appearing for the Respondents on the


other hand opposes the Petition on the ground that just because the
claimants' claim application under the provisions of Motor Vehicle Act got
rejected, by itself, would not disentitle them from
seeking compensation under the Employee's Compensation Act.
According to Shri Sharma the case of the claimants was that the deceased
was an employee of the Petitioner ie. there were an employee employer
relationship. Further the fact that the deceased had died an accidental death
is not in dispute. Now that in any case it is established before the Court
below that "the Accident arose in the course of his employment and out of
the employment" then the claimant would be entitled for
the compensation under the Employee's Compensation Act. Thus the
Court below was justified in rejecting the preliminary objection of the
Petitioner.

8. At this juncture it would be relevant to refer the provisions of


the Employee's Compensation Actwhich under Section 3 deals with the
employer's liability of compensation :-

"3. Employer's liability for compensation :- (1) If personal injury is


caused to an employee by accident arising out of and in the course of his
employment, his employer shall be liable to paycompensation in
accordance with the provisions of this Chapter:"

9. A plain reading of the aforesaid provision of the Act clearly reflects


that the ingredients for claiming compensation under
the Employee's Compensation Act was arising of an accident resulting in
personal injury / death, the accident arising out of employment and also
arisen during the course of employment, in case these ingredients are met
the entitlement for claim of the compensation is made out. Whereas under
the provisions of the Motor Vehicle Act the Tribunal are casted with the
responsibility to ascertain the actionable negligence by owner or driver of
the vehicle causing injury or death of a person so as to decide the liability
of the compensation. It is also not in dispute that the accident occurred
due to actionable act on part of the deceased himself being a driver no
claim could be entertained by the Claims Tribunal by his legal
representatives under such circumstances. However, in case the Motor
Accidents Claims Tribunal has rejected the claim application of the
claimants on the ground that the accident occurred due to actionable
negligence on the part of the deceased himself would not preclude the
Claimants from claiming compensation under
the Employee's CompensationAct. In case an application has been moved
by the claimant under the Employee's Compensation Actafter rejection of
the claim application by the Motor Accident Claims Tribunal it would not
be hit by the rule of Estoppel nor would it come under the ambit of the
Doctrine of Election.

13. In view of the aforesaid principle of law laid down by the various High
Courts when the facts of the present case is compared it would reveal that
the situation in the present case is also identical in nature. The rejection of
the claim of the Respondents by the Motor Accident Claims Tribunal was
for the reason that the accident arose on account of the negligence of the
deceased himself which could be a valid ground for rejection of the claim
application under the provision of the Motor Vehicles Act. The same
cannot be a ground for disentitling dependents of a worker who had died in
an accident under the provisions of
the Employee's Compensation Act where the negligence part is not the
consideration for the granting compensation. So far as the claim under
the Employee's CompensationAct is concerned it is only contingency or
the ingredients mentioned under Section 3(1) which are relevant for
deciding claim under Employee's Compensation Act and as regards
disentitlement under the Employee's Compensation Act is concerned the
same would only be applicable in a situation where the case falls under the
provisions of Section 3(1) of the Employee's Compensation Act. Thus the
factor of disentitlement can be decided only after the evidences are
recorded on either side particularly the employer who would have to brring
the case within the ambit of the provisions ofSection 3(1) of
the Employee's Compensation Act so as to disentitle the claim of the
Respondents.

.Arumugham @ Raj vs Revathi on 8 October, 2014


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4. The case of the respondents / claimants was resisted by the appellant


herein by filing counter statement inter alia stating that it is false to state
that the deceased Madhu had sustained injuries while he was doing the
painting work in C.M.Kalyana Mandapam belonging to the appellant. The
said statement was made by the respondents only to bring the case within
the ambit of The Employee's Compensation Act, 1923. The actual fact is
that the appellant herein was constructing a new house for his residential
purpose, which is 300 feet away from C.M.Kalyana Mandapam. The
deceased Madhu, who was a painting contractor, approached the appellant
for painting contract and the painting work of the house was entrusted to
the deceased Madhu on 22.7.2010. A total sum of Rs.25,000/- was fixed to
complete the painting work at the house of the appellant and an advance of
R.10,000/- was received by the deceased on the same day. The deceased
employed three persons to do the painting work at the house of the
appellant and he had only supervised the entire work by frequently visiting
the place as a contractor. The deceased also used to work along with
other employees. While so, on 24.7.2010, in order to complete the work,
the deceased Madhu joined with the other workers and started to do the
painting work. At that time, while he was climbing up a big stool, he fell
down and suffered injuries. The appellant had admitted him in the hospital.
But, on 4.8.2010, he had died. Suppressing the above materials facts, the
respondents have filed the claim petition as if the deceased had died while
he was doing the painting work in C.M.Kalyana Mandapam. As per the
provisions of the Workmen's Compensation Act, 1923, a person doing
work in a residential house cannot be termed as 'workman' and hence, the
claimants cannot make a claim under the Workmen Compensation Act,
1923 and only the workers, who are working in the areas specified in
Schedule-II of Employee's Compensation Act, 1923 alone are entitled to
claim compensation under the Workmen Compensation Act, 1923.
Hence, the claim petition is liable to be dismissed.

8. Per contra, learned counsel appearing for the respondents submitted that
the definition under Section 2(1)(n) of the Workmen's Compensation Act,
1923 was omitted by the Act 45 of 2009 with effect from 18.1.2010,
whereas the accident had occurred on 24.7.2010, i.e., subsequent to the
date of omission. Now, after the amendment of the Act, the word
'workman' was substituted by the word 'employee'. Now, the Act is known
as Employee's Compensation Act, 1923. In view of the omission
of Section 2(1)(n) in the Employee's Compensation Act, now the
appellant cannot deny the payment of compensation to the legal heirs of
the deceased stating that the person engaged in the painting work of a
house will not come within the purview
of Employee's Compensation Act, 1923. Therefore, the judgment relied
upon by the learned counsel appearing for the appellant reported in (2003)
9 Supreme Court Cases 190, cannot be made applicable to the facts of the
present case. Further, by inviting the attention of this Court to clause (viii)
of Schedule II of the Employee's Compensation Act, learned counsel
appearing for the respondents submitted that the persons employed in the
construction of any building would fall within the meaning of 'employee'
as defined under Section 2(1)(dd) of the Employee's Compensation Act,
1923. Further, by inviting the attention of this Court to Section 2(e),
learned counsel appearing for the respondents submitted that an employee,
who lent temporary service to an employer, has to be construed as
an employee of that employer. Therefore, the appellant cannot deny
payment of compensation to the legal heirs of the deceased Madhu.
Further, as next fold of submission, the learned counsel appearing for the
respondents submitted that the appellant has not deposited the accrued
interest as directed by the Deputy Commissioner of Labour. Unless
the compensation amount along with interest is deposited, the appeal is
not maintainable for want of sufficient compliance of the requirement of
Third Proviso to Section 30(1) of the Employee's Compensation Act,
1923. Therefore, on this ground also, the appeal is liable to be dismissed.
In this regard, learned counsel appearing for the respondents relied upon
the decision of this Court in the caseof Oriental Insurance Co. Ltd. v.
R.Mahalingam reported in 2012 (2) TN MAC 750 and an unreported
judgment of this Court dated 12.12.2012 made in M.P.No.1 of 2011 in
CMA SR No.91419 of 2011.

9. Keeping the submissions made on either side, I have carefully gone


through the entire materials available on record.

10. It is the case of the respondents that on 24.7.2010, while the deceased
Madhu was painting the wall of C.M.Kalyana Mandapam belonging to the
appellant, he fell down and sustained grievous injuries and subsequently,
had died in the hospital. Though the appellant has admitted the accident, he
denied the case of the respondents that on 24.7.2010, the deceased was
doing the painting work in his Kalyana Mandapam. It is the specific
defence of the appellant that on the date of accident, while the deceased
Madhu was doing the painting work in his house, which was under
construction, he met with the accident. Only in order to bring
the case within the ambit of the Employee's Compensation Act, 1923,
purposely the respondents have stated in the claim petition as if the
deceased was doing painting work in the Kalyana Mandapam of the
appellant at the time of accident. In this regard, learned counsel appearing
for the appellant has invited the attention of this Court to the First
Information Report and Charge sheet filed by the police before the trial
Court and submitted that in the First Information Report and charge sheet,
the place of occurrence was shown as house of the appellant herein. As
per Section 2(1)(n) of the Workmen's Compensation Act, 1923, the
person involved in the painting work of a house will not come within the
meaning of 'workman'. But, as contended by the learned counsel appearing
for the respondents, Section 2(1)(n) was omitted by Act 45 of 2009 with
effect from 18.1.2010. The accident had occurred only after the date of
omission of the said Section. The effect of the said omission is that
the employees found in the list of persons mentioned in Schedule II of
the Employee's Compensation Act, 1923 are eligible to
get compensation. Clause (viii) of Schedule II
of Employee's Compensation Act, 1923 reads as follows:-