C.S. Karnan, J.@mdashThe above Civil Miscellaneous Appeal has been filed by the Appellant/Respondent against the Order dated 18.10.2004, made in W.C. No. 307 of 2002, on the file of the Deputy Commissioner of Labour (Workmen''s Compensation), Salem, awarding a compensation of Rs. 2,71,300/-, failing which together with 9% interest per annum, from the date of filing the claim petition till the date of payment of compensation.
2. Aggrieved by the said Award and Decree, the Appellant/Respondent has filed the above appeal praying to set aside order passed by the Tribunal.
3. The short facts of the case are as follows:
One P. Vadivel, Contract Labour, a workman employed by (a contractor with) the opposite party-I of the TNEB day of 07.01.2002 received personal injury by accident arising out of and in the course of his employment resulting in his death on 07.01.2002. The cause of the injury was in discharging the fuse of all work at electric pole, he met electric cut resulting death. The applicant is dependant of the deceased workman being his father. The monthly wages of the deceased amount of Rs. 170/per day. The deceased was over the age of 15 years at the time of death of 20 years. As such, he claimed a compensation of Rs. 3,58,400/- before the Deputy Commissioner of Labour (Workmen''s Compensation), Salem.
4. The Respondent/Superintending Engineer, Mettur Electricity Distribution Circle, Tamil Nadu Electricity Board in their Counter, had resisted the claim petition that the Respondent applicant''s son Vadivelu was working on contract basis at Thanneerpanthalpalayam Branch as a lineman. He was not authorised to work on the electric poster, electricity connections. On the date of accident and at the place of the incident namely Venkipalayam, some one was engaged. No complaint was received that the electric light was not burning at the accident place and it was also not entered in the register that the light was not burning. Actually, one Guruswamy was working in the said place, as such the deceased had not been authorised to perform any work at the accident place. The deceased himself voluntarily involved himself in the said work. Further, the deceased was not earning a sum of Rs. 170/- per day.
5. The Deputy Commissioner of Labour (Workmen''s Compensation) had framed the four issues for the consideration namely:
(i) Whether the deceased was working as a labourer under the Respondent at the time of the accident occurring?
(ii) Before the death what was the age and income of the deceased?
(iii)How much compensation the claimant is entitled to receive?
(iv)Who is responsible to pay the compensation?
6. On the Petitioner''s side, the claimant was examined as PW1 and four documents were marked as Exs.P1 to P4 namely Ex.P1-First Information Report, Ex.P2-Post-mortem Report, Ex.P3-Attendance Register, Ex.P4-School Transfer Certificate. On the Respondent''s side one K. Natarajan was examined as RW1 and two documents were marked as Exs.R1 and R2 namely Ex.R1Accident Register and Ex.R2-Fees of call register.
7. The PW1, the claimant, had adduced evidence stating that on 07.01.2002 at Karuveppampatti Panchayat, Kuppayeekadu, a light was not burning at some huts in the locality. Hence, the deceased climbed on the electric post and carried out the repairs. At that point of time, he was shocked by electric wire. In order to prove the same, Ex.P1-First Information Report and Ex.P2Post-mortem Report were marked.
8. The RW1, K. Natarajan had adduced evidence stating that the deceased without the knowledge of the Electricity Board Office and also without permission from them, the deceased had carried out the repair works.
9. After consider the evidence of the both parties and documents marked as exhibits, the Deputy Commissioner of Labour (Workmen''s Compensation) had decided the four issues in favour of the applicant and awarded the compensation after adopting such a formula as follows:50/100X Rs. 2,400/-X224.00=Rs.2,68,000/- and also awarded a sum of Rs. 2,500/-under the head of funeral expenses. In total, the Deputy Commissioner of Labour (Workmen''s Compensation) awarded a sum of Rs. 2,71,300/- as compensation to the Petitioner, failing which together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Accordingly ordered.
10. Challenging the said award, the Appellant has filed the above appeal to set aside the order passed in W.C. No. 307 of 2002, on the file of the Deputy Commissioner of Labour (Workmen''s Compensation), Salem.
11. The learned Counsel appearing for the Appellant argued that there was no work allotted to the deceased on the date of accident. No complaint has been received from the huts in the locality stating that lights was not burning. The deceased on his own accord had attended the work on a private complaint. As such, the employer and employee relationship had not prevailed. Further, the learned Counsel argued that it cannot be said that the accident took place out of and in the course of employment. Further, the Deputy Commissioner of Labour (Workmen''s Compensation), Salem failed to consider the contributory negligence on the part of the deceased. The minimum wage of Rs. 80/- per day, at the relevant time, this finding is erroneous. The liability fixed on the Appellant is highly disproportionate. The learned Deputy Commissioner of Labour (Workmen''s Compensation), Salem had decided all the four issues against the Appellant, which is erroneous. Hence, the learned Counsel prays to set aside the order.
12. Considering the facts and circumstances of the case, the arguments advanced by the learned Counsel appearing for the Appellant and the order passed by the Deputy Commissioner of Labour (Workmen''s Compensation), Salem, this Court is of the view that there is no dispute that he was not employed. Further, it is an admitted fact that the lights were not burning in the region of the huts. Electricity being the basic amenity, it was power failure at that point of time. The deceased was a dutiful employee and a still craftsman to carry out the necessary repair to restore the power to the public. Therefore, there is no discrepancy in the order dated 18.10.2004, made in W.C. No. 307 of 2002, on the file of the Deputy Commissioner of Labour (Workmen''s Compensation), Salem. Hence, this Court concurrs with the findings of the Deputy Commissioner of Labour (Workmen''s Compensation), Salem.
13. It is open to the applicant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of the W.C. No. 307 of 2002, on the file of the Deputy Commissioner of Labour (Workmen''s Compensation), Salem, after observing necessary formalities, subject to deduction of withdrawals if any, in accordance with law.
14. In the result, this Civil Miscellaneous Appeal is dismissed and the Order dated 18.10.2004, made in W.C. No. 307 of 2002, passed by the Deputy Commissioner of Labour (Workmen''s Compensation), Salem is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
