(Prayer: Civil Miscellaneous Appeal is filed under Section 30 of the Workmen Compensation Act, 1923, to set-aside the order passed in W.C.No.241 of 2004, on the file of Deputy Commissioner of Labour, Madurai, dated 27.02.2007.)

1. The appellant / first respondent has preferred the present appeal against the order passed in W.C.No.241 of 2004, on the file of Deputy Commissioner of Labour, Madurai.

2. The short facts of the case are as follows:-

The applicants, who are the wife and minor son of the (deceased) Sethuraman have filed the claim in W.C.No.241 of 2004, claiming compensation of a sum of Rs.4,07,700/- from the respondents for the death of the said Sethuraman in an accident that arose out of and in the course of his employment with the respondents. It was submitted that the deceased Sethu @ Sethuraman was engaged by the second respondent to paint the first respondents building. As such, on 01.06.2003, when the deceased was painting the first respondents building, he fell down from the saram and sustained grievous injuries. He was immediately taken to Government Hospital, Karaikudi and then referred to Government Rajaji Hospital, Madurai for further treatment. However, in spite of treatment, he succumbed to his injuries on 02.06.2003. At the time of accident, the deceased was aged 32 years old and was drawing a salary of Rs.5,250/- per month as wages. Hence, the applicants have filed the claim against the first and second respondents, viz., Central Electro Chemical and Research Institute, Karaikudi and K.Kalyanasundaram, contractor, Pulvayal (Post).

3. The first respondent, in his counter has submitted that the first respondent invited sealed tenders from registered contractors vide notice No.13 of 2002, dated 26.11.2002 for ten items including Sl.No.9, for painting works at administrative building of this respondent. After completing all official formalities relating to award of contract and on the basis of the tender dated 11.12.2002 submitted by the said contractor, work order No.5 of 2003, dated 11.05.2003 was issued to the said contractor for carrying out the work under Sl.No.9 for Rs.85,217/-. As per the terms and conditions No.14(a) of the said agreement, the contractor shall be responsible for all injury to persons, animals or things and for all damages, whether such injury or damage arises from carelessness or accident, in any way connected therewith. This respondent also stated that the contractor K.Kalyanasundaram was informed by them through their letter dated 03.06.2003 that one Sethu fell down on 01.06.2003 and later declared dead on 02.06.2003 and as per terms and conditions of the agreement, he would fully pay the compensation payable in respect of the deceased person. The allegation that the deceased was 32 years old and that he was getting Rs.5,250/- per month as wages are denied as false. It was submitted that the claim of Rs.4,07,700/- as compensation was excessive.

4. The second respondent, in his counter has stated that the first respondent, viz., Principal Employer called for tenders for painting works in its administrative building and this respondent applied for the same and the work order for Rs.85,2517/- was issued by the respondent. It was submitted that the second respondent engaged some workers including the deceased for carrying out the painting works of the first respondent building and that the second respondent had strongly instructed his workers not to work on the weekly holidays and that if at all anything happens on the weekly holiday, he is not responsible for the injury or any other thing. But, disregarding the stern instructions, the deceased entered into the first respondent premises on 01.06.2003 which was a Sunday and a weekly holiday and had tried to set-right the saram and fell down and sustained injury and subsequently succumbed to his injuries. The averments in the claim regarding age of deceased was not admitted. It was submitted that the second respondent had paid only a sum of Rs.70/- per day as wages to the deceased. It was submitted that the applicants have to prove that they are the legal-heirs of the deceased through documentary evidence.

5. On the applicants side, the first applicant, Tmt.Mangayarkarasi was examined as P.W.1 and five documents were marked as Exs.A1 to A5, viz., Ex.A1-copy of F.I.R., dated 02.06.2003, Ex.A-2 copy of R.C., Ex.A3-copy of postmortem certificate of deceased Sethu, Ex.A4-copy of legal-heir certificate, Ex.A5-copy of school certificate of deceased. On the respondents side, three witnesses were examined as R.W.1, R.W.2 and R.W.3 and four documents were marked as Exs.R1 to R4, viz., Ex.R1-copy of tender notice and contract agreement between first and second respondents, Ex.R2-copy of letter dated 03.06.2003, written by the second respondent to first respondent, Ex.R3-letter dated 28.08.2003 written by the second respondent to first respondent, Ex.R4-letter dated 03.06.2003 written by the second respondent to the first respondent.

6. The Deputy Commissioner framed four issues for consideration in the case, viz.,

"(i) Whether the deceased Sethu @ Sethuraman was a workman as per the Workman Compensation Act

(ii) If so, did he die in the accident arising out of and in the course of his employment

(iii) If yes, what is the quantum of compensation payable

(iv) Who is liable to pay compensation"

7. P.W.1, had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her claim, she had marked Exs.A1 to A5. The Deputy Commissioner, on scrutiny of Ex.A1, F.I.R., observed that the statements contained in the F.I.R. were in consonance with the version of the applicant regarding manner of accident. It was further observed that there was no contra evidence or documents to disprove the claim of the applicant. Hence, the Deputy Commissioner held that the deceased was a workman employed by the second respondent, as a painter and that the deceased was engaged by the second respondent to paint the first respondents building and he had sustained injuries in the accident that arose out of and in the course of his employment on 01.06.2003 and died due to the injuries sustained.

8. The Deputy Commissioner on scrutiny of Ex.A5, observed that the deceased was aged 33 years. As no documentary evidence was marked to prove the income of the deceased, the Deputy Commissioner, held that the income of the deceased was Rs.3,707/- per month, as per the minimum wages payable to workman employed for construction and maintenance in buildings undertaking as per the G.O.No.2D 29 L&E, Dept. dated 24.04.2000. The Deputy Commissioner, on adopting a multiplier of 201.66, awarded a sum of Rs.3,73,77/- as compensation to the applicants; Rs.2,500/- was granted towards funeral expenses. In total, the Deputy Commissioner awarded a sum of Rs.3,76,277/- as compensation to the applicants.

9. R.W.1, Thiru. P.G.Mathusoodhanan, Officer, law division in the first respondents firm had adduced evidence that their concern is a research institute and that they had given the contract to white wash of the building to the second respondent and that as per the contract, if any accident occurred in the premises of the first respondent, the second respondent agreed to pay compensation to the affected workmen. He deposed that after the accident, the second respondent wrote a letter to the first respondent, wherein he agreed to pay compensation to the legal-heir of the deceased. He deposed that white washing of the building is not at all a job of the respondent and the deceased was not an employee of this respondent. He deposed that the deceased was an employee of the second respondent and the salary was given by the second respondent to the deceased and that no employer and employee relationship existed between this respondent and the deceased and as such, the second respondent is liable to pay compensation. In support of his evidence, he had marked Exs.R1, R2 and R3.

10. R.W.2, Thiru.Gurusamy, Assistant Grade-I, in the first respondents firm had adduced evidence that after the accident, the second respondent wrote a letter to the first respondent, wherein the second respondent agreed to pay compensation to the legal-heir of the deceased. In support of his contentions, he had marked the original letter dated 03.06.2003 written by the second respondent to the first respondent.

11. P.W.3, Thiru.K.Kalyanasundaram, Contractor and the second respondent deposed evidence that the deceased and his four brothers worked under his contract. He deposed that the accident had occurred on Sunday, i.e., 01.06.2003, and that the deceased was working on 01.06.2003 in the premises of the first respondent, without taking the permission of the second respondent. He further deposed that as the Administrative Officer of the first respondent Management had stated that the pending payment due to him would be released only after he gives a letter he had to give the said letter to the first respondent.

12. The Deputy Commissioner opined that the Principal Employer is liable to pay compensation even in respect of worker engaged under a contractor, if the work entrusted with the contractor is connected with trade or business of the principal employer. The Deputy Commissioner on observing that though working of painting the building may not have a direct bearing on trade or business, maintenance of such building is fundamental to trade or business held that the concept of trade or business have to be necessarily extended to such work as well. Therefore, the Deputy Commissioner, held the first respondent being the principal employer, liable to pay the compensation. The Deputy Commissioner directed the first respondent to deposit the sum of Rs.3,76,277/- within 30 days from the date of receipt of its order, failing which, the first respondent was directed to deposit the said amount along with an interest at the rate of 12% per annum from the date of accident till date of deposit. The Deputy Commissioner, however permitted the first respondent to recover the same from the second respondent by virtue of operation of Section 12(2) of Workmens Compensation Act, 1923.

13. Aggrieved by the award passed by the Deputy Commissioner of Labour, the first respondent/Central Electro Chemical and Research Institute, Karaikudi has preferred the present appeal.

14. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have seen that the appellant is a research institute and that there was no master and servant relationship between the deceased and the appellant in discharge of any work for the regular trade or business. It was contended that the Tribunal ought to have appreciated the evidence of the third respondent herein, who accepts that the deceased was employed under him as a contract labourer. It was contended that the Tribunal erred in not permitting the appellant herein from recovering the same from the third respondent herein, who is liable as per Section 12(2) of the Workmen Compensation Act, 1923. Hence, it was prayed to set-aside the award passed by the Tribunal.

15. The learned counsel for the applicants contended that the employer-employee relationship had been established and it was also proved that the deceased expired in the course of employment. In order to prove the two aspects, F.I.R., death certificate and postmortem certificate was marked. After considering the averments of both parties and perusal of records marked by them and after considering the age and income of the deceased, the compensation amount had been assessed and the same was awarded to the young widow and minor son of the deceased. The quantum of compensation is also not on the higher side.

16. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Deputy Commissioner of Labour, this Court does not find any discrepancy in the conditions arrived at regarding employer-employee relationship and that the occurrence of accident had taken place in the course of employment. Further, the Tribunal had assessed the compensation after adopting necessary factors on the basis of income and age of the deceased.Therefore, the impugned order is found to be an appropriate one. Hence, this Court directs the appellant to deposit the entire compensation amount, as per the Deputy Commissioner of Labours order passed in W.C.No.241 of2 004, within a period of six weeks from the date of receipt of a copy of this order, subject to deduction of earlier deposits made by them. The recovery proceedings ordered by the Deputy Commissioner of Labour remains unaltered.

17. It is open to the applicants to withdraw their apportioned share of compensation, as per the order of the Deputy Commissioner of Labour, after filing a Memo before him, along with a copy of this order and after identification made by their counsel. The Deputy Commissioner of Labour shall disburse the amount after compliance by the applicants.

18. In the result, the appeal is dismissed. Consequently, the order passed in W.C.No.241 of 2004, on the file of Deputy Commissioner of Labour, Madurai, dated 27.02.2007 is confirmed. There is no order as to costs.