Chella @ Yesudhasan v. Uthirasamy

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 17.08.2023 Pronounced on : 30.11.2023 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.M.A.(MD)Nos.1367, 1368 and 1369 of 2009 Chella @ Yesudhasan

... Appellant in CMA(MD)No. 1367 of 2009 Nagendran @ Francis

... Appellant in CMA(MD)No. 1368 of 2009 Kaetheeswaran

... Appellant in CMA(MD)No. 1369 of 2009 Vs.

¶1Uthirasamy

¶2The Branch Manager, The Oriental Insurance Co. Ltd., No.54, Thalai Road, R.V.K. Building First Floor, Udumalpet Town, Coimbatore District.

... Respondents in both appeals COMMON PRAYER : These Civil Miscellaneous Appeals filed under Section 30 of W.C. Act, to allow these appeals and set aside the orders of the Deputy Commissioner of Labour, Dindigul in W.C.Nos.147, 150 and 148 of 2007 dated 28.05.2009. (in all appeals) For Appellant : Mr.C.K.M.Appaji For R1 : No appearance For R2 : Mr.C.Jawahar Ravindran COMMON JUDGMENT These Civil Miscellaneous Appeals are directed against the orders passed in W.C.Nos.147 of 2007, 150 of 2007 and 148 of 2007 dated

28.05.2009 on the file of the Deputy Commissioner of Labour, Dindigul, dismissing the claim petitions.

¶2The appellants have filed separate claim petitions seeking compensation for the injuries/disabilities suffered by them in a motor accident occurred on 18.10.2006.

¶3The case of the appellants is that on 18.10.2006, when the appellants and others were loading the wooden logs in the first respondent's lorry bearing Registration No.TN-27-F-0095, which parked on the southern extremity of Kangeyam – Coimbatore main road and West of Kadaiyur, the accident had occurred and as a result of which, the appellants had sustained injuries and that they were admitted in a private hospital and after taking inpatient treatment got discharged.

¶4It is their further case that they were working as load men in the lorry bearing Registration No.TN-27-F-0095 owned by the first respondent and were earning Rs.6,000/- per month.

¶5The first respondent/owner of the lorry had remained ex parte.

¶6The defence of the second respondent is that the appellants should prove that they were working as load men under the first respondent in the lorry bearing Registration No.TN-27-F-0095 and sustained injuries during the course and in the course of employment, that the first respondent colluding with the appellants had remained ex parte in the above said proceedings and that therefore, the appellants should prove the employment through the first respondent with proper documentary evidence.

¶7The second respondent, by filing additional statement of objection, has raised additional defence that 50 persons including the appellants were working under one Ruthrasamy for cutting trees and after cutting trees, they have loaded the wooden logs and while they were loading the wooden logs in the lorry on the road side, an auto bearing Registration No.TN-33-B-4258 dashed against the appellants and the lorry and as a result of which, the appellants had sustained injuries and that the appellants were not the employees of the first respondent's lorry and there is no employer-employees relationship between the first respondent and the appellants and as such, the second respondent is not liable for the claim.

¶8It is their further defence that the first respondent has paid premium only for driver and conductor/cleaner, that the first respondent has not paid any premium for load man and as such, the risk of the appellants was not covered by the policy issued by the second respondent and that therefore, the appellants are not entitled to get any compensation from the second respondent.

¶9It is not in dispute that on the basis of the complaint lodged by the appellant in C.M.A.(MD)No.1368 of 2009 Nagendran @ Francis, FIR came to be registered in Crime No.983 of 2006 dated 19.10.2006 for the offences under Sections 279 and 337 IPC against the driver of the auto bearing Registration No.TN-33-B-4258.

¶10During separate trials, the appellants have examined themselves as P.W.1 in their respective petitions and examined the medical officers, who have issued the disability certificate as P.W.2 and exhibited 10 documents as Ex.P.1 to Ex.P.10. On the side of the second respondent, their official Thiru.Muralidharan has been examined as R.W.1 and exhibited the copy of the insurance policy as Ex.R.1.

¶11The Deputy Commissioner of Labour, considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed separate orders dated 28.05.2009 dismissing the claim petitions. Aggrieved by the order of dismissal, the claimants have preferred the present appeals.

¶12The learned counsel appearing for the appellants would submit that the Deputy Commissioner of Labour failed to consider that the appellants and co-workers are Srilankan refugees and due to the slang pronunciation of Tamil, the name of the first respondent Uthirasamy was wrongly indicated as Ruthrasamy in the FIR, that the second respondent has not disputed the identity of the first respondent in their counter statement, that the Deputy Commissioner of Labour has also failed to see the factum that the first respondent's lorry was the vehicle involved in the loading at the time of accident and the ownership of the first respondent remained undisputed all along and that the Deputy Commissioner of Labour erred in dismissing the claim petitions on the sole ground that the name Ruthrasamy shown in the FIR is not the first respondent and as such, there was no employer-employees relationship between them.

¶13The following substantial question of law framed at the time of admission:

¶1Whether the reasoning of the Deputy Commissioner of Labour, dismissing the claim petition is contrary to the evidence on record?

¶14On perusing of the records and on considering the submissions made on either side, the following additional substantial questions of law is framed;

¶1Whether the Deputy Commissioner erred in dismissing the claim petitions on the ground that Ruthrasamy shown in the FIR and the first respondent are different persons and as such, there existed no relationship of employer-employees between the first respondent and the appellants, despite showing that one of the appellants while lodging the FIR has committed a mistake in giving the name of Ruthrasamy instead of Uthirasamy and that when the identity of the first respondent was not at all disputed by the second respondent all along?

¶15As already pointed out, in the claim petitions, the appellants, while narrating the mode of accident have simply stated that while they were loading the wooden logs on the road side, the accident had occurred and they have not pleaded anything as to how the accident had occurred. But, as already pointed out, one of the appellants Nagendran @ Francis has preferred the police complaint and on that basis, FIR came to be registered. The said Nagendran @ Francis, in his evidence before the Deputy Commissioner of Labour, would specifically admit that he alone has preferred the complaint and on that basis, FIR was registered. In Ex.P.1-complaint, he has narrated the mode of accident and the same is extracted hereunder for better appreciation; "ehd; vd; FLk;gj;Jld; Gspak;gl;b mfjpfs; Kfhkpy; FbapUf;fpNwd;. ehDk; vq;fs; Ch;f;fhuh;fs; 15 Ngh;fs; f&h;> NfhitNuhL> mfyg;gLj;jg;gLtjhy; kuk; ntl;l fhz;buhf;l; vLj;Js;s Uj;urhkp mth;fsplk; Ntiy nra;J tUfpNwhk;. New;W 18.10.2006k; Njjp ,uT Rkhh; 8 ½ kzpf;F fhq;fak; to Nfhit nry;Yk; fpof;F Nkw;F Nuhl;by; fhila+h;f;F i`Nt Nfhz;fis itj;J NyhL Vw;wpf; nfhz;bUe;Njhk;. mg;NghJ fpof;fpy; ,Ue;J Nkw;Nf mjpfNtfkhfTk;> ftdf;FiwthfTk; te;j Ml;Nlh TN 33 B 4258 vd;kPJk; vd;Dld; Ntiy nra;J nfhz;bUe;j NfjPitud;> nry;yh Mfpa %thpd; kPJk; Nkhjp js;sptpl;L ehq;fs; NyhL Vw;wpf; nfhz;bUe;j Nkw;gb yhhp TN 27 F 0095d; gpd;Gwk; tyJ gf;f %iyapy; Nkhjp ftpo;e;J tpl;lJ. Ml;Nlh Xl;Ldh; Ml;Nlhtpy; ,Ue;J ntspNa te;J fpof;Nf Xbtpl;lhh;. Ml;Nlh Nkhjpajpy; vdf;F tyJ Njhs;gl;ilapy; nkhf;if mbAk;> tyJ Koq;fhypYk;> tyJ Kd;ifapYk; uj;j fhak; MdJ. nry;thTf;F jiyapy; uj;j fhaq;fSk;> tyJ Njhs;gl;ilapy; nkhf;if mbAk; Vw;gl;lJ. NfjP];tuDf;F ,lJ njhilapy; nkhf;iff; fhak; MdJ. vq;fSld; Ntiy nra;j Nfhbr;re;jpud;> Nkhfd; MfpNahh; xUNghf;F fhhpy; jpt;ah kUj;Jtkid fhq;Nfak; nfhz;L te;J vq;fis ngl;by; Nrh;j;jhh;fs;. ehq;fs; %tUk; cs;Nehahspahf rpfpr;ir ngw;W tUfpNwhk;."

¶16In cross-examination, the said Nagendran @ Francis would deny that the accident had happened by dashing of the auto and would reiterate that the accident was occurred only due to the dashing of the lorry. Even in the claim petitions, the appellants have alleged that they were loading the wooden logs in the parked lorry. As rightly contented by the learned counsel appearing for the second respondent, all the appellants have suppressed the real accident and pleaded the mode of accident to suit their case.

¶17The main defence of the second respondent is that the appellants were working under one contractor Ruthrasamy, who had taken the road side tree cutting contract and that when the appellants, after cutting the trees, were loading the wooden logs in the lorry at the time of accident, the appellants were not the employees of the first respondent and that since there existed no relationship of employer and employees between the first respondent and the appellants, the second respondent cannot be made liable. As already pointed out, in the FIR, it has been specifically stated that the appellants were working under the contractor Ruthrasamy.

¶18The appellant Nagendran @ Francis in his cross-examination would say, "rk;gt rkak; ehDk; kw;Wk; 15 egh;fSk; Uj;urhkp vd;w kuk; ntl;Lk; fhd;l;uhf;lhplk; Ntiy ghh;j;Njhk; vd;why; rhpay;y;. 5 Ngh; Ntiy ghh;j;Njhk;. NghyPrpy; Gfhh; nfhLj;jjpy; ehDk;> 15 Ngh;fSk; Ntiy ghh;j;Njhk; vd;Wjhd; $wpAs;Nsd; vd;why; 5 Ngh; jhd; Ntiy ghh;j;Njhk;."

¶19The appellant Kaetheeswaran in his cross-examination would specifically admit that he was working as a load man under the tree cutting contractor Ruthrasamy and the relevant portion is extracted hereunder; "Uj;urhkp vd;w kuk; ntl;Lk; fhz;luhf;lhplk; NyhLNkdhf Ntiy ghhj;Njd;. Kjy; jfty; mwpf;ifapd;gb ehDk;> 15 egh;fSk; Uj;urhkp vd;w kuk; ntl;Lk;

fhz;l;uhf;lhplk;

Ntiy

ghh;j;jjhf Fwpg;gplg;gl;Ls;sJ vd;whhy; NyhLNkdhfj;jhd; Ntiy ghh;j;Njd;."

¶20The other appellant in C.M.A.(MD)No.1367 of 2009 Chella @ Yesudhasan in his cross-examination would say, "Uj;urhkp vd;w kuk; ntl;Lk; fhz;l;uhf;lhplk; Ntiy ghh;j;jPh;fsh vd;why; ,y;iy. NyhLNkdhfj;jhd; Ntiy ghh;j;Njd;. Kjy; jfty; mwpf;ifapd;gb> ehDk;> 15 Ngh;fSk; Uj;urhkp vd;w kuk; ntl;Lk; fhz;luhf;lhplk; Ntiy ghh;j;jjhf Fwpg;gplg;gl;Ls;sJ vd;why; rhpay;y."

¶21All the appellants in their cross-examination would say that they were working under the first respondent at the time of accident and that they have not produced any records to show that they were working under the first respondent and were receiving salary from him. The appellants in C.M.A.(MD)Nos.1367 and 1368 of 2009 in their further cross-examination would specifically say that they have not produced any records to show that they were working under the first respondent at the time of accident.

¶22No doubt, the appellants have produced the copies of the Registration Certificate, permit, insurance policy and M.V. Report. In the claim petitions, the first respondent has been shown as Uthirasamy, S/o.Chellappa Gounder. It is not in dispute that the first respondent is the owner of the lorry bearing Registration No.TN-27-F-0095 and the same was insured with the second respondent and that the insurance policy was in force on on the date of accident.

¶23As rightly contented by the learned counsel appearing for the second respondent, after the dismissal of the claim petitions, the appellants before this Court have canvassed a new version that since they were the Srilankan refugees, due to the slang pronunciation of Tamil, the name of the first respondent Uthirasamy has been wrongly indicated as Ruthrasamy in the FIR. To put it in other way, according to the appellants, Ruthrasamy shown in the FIR and Uthirasamy shown as first respondent in the claim petitions are one and same person. But admittedly, the appellants have not produced any iota of evidence. Though the appellants have specifically alleged that they were working under the first respondent, they have not produced any material or evidence to substantiate the same. As already pointed out, the appellants have specifically admitted that they have not produced any records to show that they were working under the first respondent. As already pointed out, the first respondent had remained ex parte. The appellants have not chosen to examine the first respondent nor summon the records from the first respondent to show that the appellants were engaged by the first respondent and salary was being paid by him.

¶24Considering the above, as rightly observed by the Deputy Commissioner of Labour, the appellants have miserably failed to prove that they were not working under Ruthrasamy for cutting the road side trees and that they were working as load men in the first respondent's lorry. Hence, the impugned orders dismissing the claim petitions cannot be found fault with and this Court concludes that the appeals are devoid of merits and the same are liable to be dismissed.

¶25Considering the other facts and circumstances of the case, this Court further decides that the parties are to be directed to bear their own costs.

¶26In the result, these Civil Miscellaneous Appeals are dismissed and the impugned orders dated 28.05.2009 passed in W.C.Nos.147, 150 and 148 of 2007 shall stand confirmed. Parties are directed to bear their own costs.

30.11.2023 NCC : Yes/No Index : Yes/No Internet: Yes/No csm To:

¶1The Deputy Commissioner of Labour, Dindigul.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. K.MURALI SHANKAR

,J.

csm C.M.A.(MD)Nos.1367, 1368 and 1369 of 2009 Dated :30.11.2023