Shri. Suresha Vs Shabbir K (Since Dead by His Lrs)

THIS MFA IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT AGAINST THE JUDGMENT AND AWARD DATED 01.03.2016 PASSED IN ECA NO.104/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, & JMFC, CHIKKAMAGALURU, DISMISSING THE CLAIM PETITION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 01.03.2016 in E.C.A.No.104/2014 passed by the learned II Addl. Senior Civil Judge & JMFC, Chikkamagaluru and Commissioner under Employees' Compensation Act, 1923, (for short `the Commissioner').

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This appeal is admitted to consider the following substantial question of law:

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"In the facts and circumstances of the case, whether the Commissioner for Workmen's Compensation is

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justified in dismissing the claim petition on the ground that the claimant has failed to prove the employeremployee relationship?"

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The brief facts of the case are that the claimant was working as a loader and unloader in the Canter lorry bearing registration No. KA-18/4162, owned by respondent No.1. As per the instructions and directions of respondent No.1, on 19.08.2008 at around 12:00 noon, while the claimant was unloading size stones at Ayyappanagara, Chikkamagaluru, a size stone accidentally fell on his left leg, resulting in fractures to both bones of the left leg. Immediately he was taken to M.G.Hospital, Chikkamagaluru, where he was admitted as an in-patient. He has suffered permanent disability due to injury sustained in the accident. With these reasons, he prayed to award compensation under Section 3 of the Workmen's

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Compensation Act, 1923.

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Respondent No.1 was the owner of the Lorry and after his death, his wife and son were impleaded as

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parties. Respondent No.2 is the insurer of the said vehicle. Both the respondents have filed their written statement.

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Respondent No.1 denied the contents of the claim petition and also denied the relationship of claimant as a workman under respondent No.1. He also denied that as on the date of accident, the claimant was working as a loader and unloader in the said Lorry but he admits that he was the owner of the said Lorry. He further contended that respondent No.1 had purchased a policy of insurance from respondent No.2 and it was in force as on the date of alleged incident. If the Court comes to the conclusion that respondent No.1 is liable to pay the compensation, then the respondent no.2 should be directed to pay the same.

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Respondent No.2 in its written statement admits the policy of insurance under the said Canter Lorry but denied

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other facts stated in the claim petition and prayed to

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dismiss the claim petition.

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From the rival contentions of the parties, the Commissioner framed necessary issues.

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The claimant to prove his case examined two witnesses as PW-1 & 2 and got marked four documents as per Exs.P-1 to P-4. Respondents examined two witnesses as R.W.1 & 2 and marked as Exs.R1 to R4. After hearing both parties, the Tribunal dismissed the claim petition on the ground that the claimant failed to establish an employer-employee relationship between respondent No.1 and claimant.

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Being dissatisfied with the said judgment and award dated 01.03.2016, in E.C.A.No.104/2014 passed by the Commissioner, the claimant has preferred this appeal.

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After hearing the matter, it was admitted to consider the aforesaid substantial question of law.

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HC-KAR

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Undisputed facts are that respondent No.1 is the owner of the Lorry bearing registration No.KA-18/4162 and it was insured with respondent No.2. At the time of alleged incident, the deceased Shabbir, respondent No.1 was the owner of the vehicle. After his death, his legal heir was brought on record as respondent No.1(a).

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P.W.1 in his evidence has narrated the facts of the

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case. In his cross-examination, certain facts were not disputed, such as the spot of the incident, that he was unloading stones from the lorry, and that a stone fell on his leg causing injuries. It was also suggested that, on the said date, the Secretary of the Mosque, where the claimant was unloading the stones paid him Rs. 2,000/and sent him to the hospital. The claimant further stated that he narrated the history of the injury to the hospital staff. He also mentioned that the persons associated with

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the Mosque paid his wages of that day. Additionally, the individuals present with him provided the vehicle number to the doctor. If the claimant had no connection

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HC-KAR

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whatsoever with the lorry and he was not engaged in unloading marble stones transported to the Mosque by the said vehicle, then the above cross-examination would be unnecessary and irrelevant. Furthermore, if the claimant was a complete stranger to the lorry and the incident, how would respondent No.1 has known the detailed facts surrounding the accident. It is also not the respondent’s case that he was an office bearer of the said Mosque. Based on these facts, any prudent person would infer from the suggestions made that the claimant was serving under respondent No.1, and that the denial of the employeremployee relationship is merely an attempt to avoid liability.

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Learned Counsel for the insurer vehemently contended that there was no material or documentary evidence to prove about the incident or to prove that claimant was an employee of respondent No.1. On the contrary, in the cross-examination of P.W.1, he has stated that on that day, he was paid by the persons belonging to

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Mosque. It is pertinent to note that it is not a case of respondent No.1 that he was maintaining any records regarding appointment of a person or payment of salary to employee. It is also not the case that respondent No.1 himself was driving the said Lorry. Had he produced the registers or documents regarding payment of salary to driver of the said vehicle, in that circumstances, there may be probability that even for the coolies also, there must be some records. Therefore, merely because the claimant was unable to produce any records cannot be a ground to disbelieve his evidence. The Tribunal rejected the claim petition mainly on the ground that claimant failed to produce any document to prove that he was serving as a loader and unloader in the Lorry belonging to respondent No.1. The said finding is incorrect.

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Workmen's Compensation Act is a benevolent legislation and it is a summary trial proceeding. Strict rule of law may not be applicable. For a loader or unloader working on a lorry that does not belong to a public limited

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company or a transport agency, there may not be any documentary evidence to prove such employment and most of the time, such employees were called on requirement basis. However, based on the knowledge of respondent No.1, it was suggested to P.W.1 during crossexamination that the claimant was engaged by him, and that stones were transported and unloaded from the said lorry. From these materials, it can be reasonably inferred that the claimant was employed by respondent No.1.

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Claimant examined P.W.2 and according to him, claimant sustained permanent disability of 30% to his left leg. According to the case of claimant, he was aged about 24 years. Therefore, the relevant factor in this case is 218.47 as per the Schedule of the Workmen's Compensation Act. The Claimant contended that he was earning Rs.200/- per day. There is no evidence to that effect. Therefore, as provided under Section 4 of the Workmen's Compensation Act, income of the claimant is taken as Rs.4,000/- per month. 60% of the same is to be

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deducted and 40% shall be considered to assess compensation. Disability is 30 % to the body. Accordingly, it comes to Rs.1,57,298.40 (Rs.1600x30%=Rs.720x218.47) rounded off to

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Rs.1,57,300/-.

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Undisputedly, the said vehicle was insured with respondent No.2 and the premium of loader and unloader is collected. Therefore, respondent No.2 is liable to indemnify the owner of the vehicle.

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Respondent No.2 is liable to pay the interest on the said amount at the rate of 12% p.a. from 30 days after

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the incident till realization of the entire amount.

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Accordingly, the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and award dated 01.03.2016 in E.C.A.No.104/2014 passed by the 2^nd Addl. Senior Civil Judge & JMFC, Chikkamagaluru, is set aside and the claim petition is allowed.

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(iii) Respondents No.1 & 2 are jointly and severally liable to pay Rs.1,57,300/- with interest at 12% p.a. from 30 days after the incident till the date of deposit of the amount.

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(iv) Six weeks time is granted to Respondent No.2 - insurer to deposit the said amount from the date of award.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Court.

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Sd/- (UMESH M ADIGA) JUDG

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YN List No.: 1 Sl No.: 18 CT: BHK

Shri. Suresha v. Shabbir K (Since Dead by His Lrs)

Case brief

What is this about?

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Shri. Suresha v. Shabbir K (Since Dead by His Lrs)

Case brief

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Why is it important?

What the court decided

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