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2004 DIGILAW 126 (AP)

Kothari Group of Finanuocrs v. K. Muralidhar

2004-02-05

D.S.R.VERMA

body2004
D. S. R. VARMA, J. ( 1 ) THIS Civil Miscellaneous Appeal is directed against the order, dt. 21-10-2003, passed by the Commissioner for Workmen s compensation and Assistant Commissioner of Labour-Ill at Hyderabad (for short "the tribunal) in W. C. No. 74 of 2002, directing the respondent to pay a total compensation of rs. 1 ,65,526/- to the petitioner for the disability sustained and loss of earning capacity suffered by him during the course of employment. ( 2 ) THE appellant is the respondent and respondent is the claimant. ( 3 ) FOR the sake of convenience, the appellant and respondent will be referred as "employer and claimant" respectively. ( 4 ) THE facts, which are not in dispute, are that the claimant has been working under the employer as Branch Manager at Kurnool branch. The employer s business is financing to the customers to purchase autos under hire purchase scheme and it has several branches in the State including kurnool District. The business is being carried out all over tha State under the name and style of kothari Finance Corporation . After the initial appointment, the claimant was deputed to Kurnool Branch to work as branch Manager. His duties were to send the customers, who seek finance, to the employer at Hyderabad and collection of instalments payable by the customers and to look after the recovery matters. ( 5 ) WHILE the claimant was working at kurnool branch, an auto bearing No. A. P. 21t-9312 was purchased by one smt. Meenakshamma and one Mr. Srinivasa reddy was the guarantor, who used to drive the auto and also used to pay the instalments, and after paying three instalments, the principal borrower as well as the guarantor i. e. , Srinivasa Reddy became defaulters and eventually the auto was seized by the claimant upon the instructions of the employer. When the said Srinivasa reddy visited the office of the claimant repeatedly, he was informed by the claimant that unless and until the instalments are cleared, the auto cannot be released. Again, the said Srinivasa Reddy further approached the claimant on 2-5-2001 at about 4. 00 p. m. claimed release of Auto and sat in the Office till 7. When the said Srinivasa reddy visited the office of the claimant repeatedly, he was informed by the claimant that unless and until the instalments are cleared, the auto cannot be released. Again, the said Srinivasa Reddy further approached the claimant on 2-5-2001 at about 4. 00 p. m. claimed release of Auto and sat in the Office till 7. 30 p. m. Since the power went off, the claimant closed the office and when he started his scooter to go home, the said srinivasa Reddy asksd the claimant for lift, which request was obliged by him. When they went to some distance, the said srinivasa Reddy attacked him with a knife, as a result of which he was seriously injured and lost his right hand index finger and left hand thumb. Subsequently, he was treated in the Hospital. The loss of earning capacity of the claimant was estimated as 100% inasmuch as his right hand index finger and left thumb were amputated. ( 6 ) THE claimant examined himself as a. W. 1 and marked Exs. P-1 to P-7. On behalf of the employer, no oral or documentary evidence has been pressed into service. ( 7 ) THE first contention of the learned counsel appearing for the employer is that since the accident took place at Kurnool, the tribunal had no jurisdiction. ( 8 ) AT the outset, this contention has to be rejected for the simple reason that no particular jurisdiction to make a claim under the Motor Vehicles Act is prescribed. It is to be further seen that though the said objection could have been taken in the counter-affidavit before the tribunal, the said objection had not been substantiated in any manner. ( 9 ) THE other contention of the learned counsel for the employer is that the accident took place because ot physical assault by a person, who is not connected with the business of the employer, and hence the accident cannot be tieated as an accident under the Workmen s compensation Act. ( 10 ) THIS contention also cannot be sustained inasmuch as it is on record thai one Srinivasa Reddy, who stood as guarantor of the vehicle, which was taken on hire purchase by Smt. Meenakshamma, became defaulter and the said vehicle was also seized. ( 10 ) THIS contention also cannot be sustained inasmuch as it is on record thai one Srinivasa Reddy, who stood as guarantor of the vehicle, which was taken on hire purchase by Smt. Meenakshamma, became defaulter and the said vehicle was also seized. It was also recorded by the tribunal that the said Srinivasa reddy was not only the guarantor but also driving the vehicle and had been paying the instalments. Therefore, the real grievance would be, naturally, for the said Srinivasa reddy. It is also on record that on the date of accident, the said Srinivasa Reddy approached the office of the claimant and sat there till 7. 30 p. m. , and when the power went off, the claimant left the office on his scooter and the request for lift made by the said srinivasa Reddy was obliged and on the way the attack was made by the said Srinivasa reddy, resulting in amputation of index finger of the right hand and thumb of left hand of the claimant. Both the injuries are serious in nature inasmuch as index finger of the right hand and thumb of the left hand of any person do not function, one cannot attend one s regular duties. Hence, the permanent disability was estimated at 100%. ( 11 ) THE further contention of the learned counsel for the employer is that the accident took place at about 10. 30 p. m. , in the night, but there was no material on record to show that the physical assault against the claimant was at 10. 30 p. m. , in the night inasmuch as the evidence was to the effect that the attack was at 7. 30 p. m. ( 12 ) IT is to be noted that the claimant left the office because of power-cut at 7. 30 p. m. , itself, otherwise he would have been in the office, which would mean that the claimant would be performing his duties entrusted to him. A careful perusal of the evidence on record would suggest and lead to an irresistible conclusion that the claimant left the office was not on his wish but because of the failure of power supply. Therefore, the tribunal has rightly held that the accident took place during the course of employment of the claimant. A careful perusal of the evidence on record would suggest and lead to an irresistible conclusion that the claimant left the office was not on his wish but because of the failure of power supply. Therefore, the tribunal has rightly held that the accident took place during the course of employment of the claimant. In this context, it is to be noted that the attack was made by no other person than the guarantor of the vehicle under hire purchase. The vehicle was seized because of the default. Therefore, there was direct nexus between the attack and the person who attacked. In other words, the assault, which is an accident, was because of the official act of seizure of the vehicle by the claimant upon the instructions of the employer only. Therefore, it cannot be said that the accident did not take place during the course of employment. ( 13 ) FURTHER, the most important factor on the record is that the employer did not adduce any evidence whatsoever either oral or documentary on a particular occasion. The employer was set ex parte and an application was also filed to set aside the ex parte order. Even that application was not pursued properly in spite of the fact that several adjournments have been granted by the tribunal. It was specifically recorded by the tribunal that least amount of diligence or interest was taken by the employer. Having failed to contest the matter by adducing oral and documentary evidence, it is not open for the employer to raise all these objections at this stage, and this court, while exercising appellate jurisdiction, has no option but to accept the findings, which were recorded by the tribunal with cogent reasons basing on the evidence on record. ( 14 ) FURTHERMORE, it is only a substantial question of law that can be gone into by this court while exercising appellate jurisdiction. Except the contention that there was no relationship of employer and employee between the employer and the claimant and that the accident took place at 10. 30 p. m. , no other ground its raised. Those grounds, which are factual in nature, were already discussed by the tribunal in detail and gave appropriate findings. Except the contention that there was no relationship of employer and employee between the employer and the claimant and that the accident took place at 10. 30 p. m. , no other ground its raised. Those grounds, which are factual in nature, were already discussed by the tribunal in detail and gave appropriate findings. Though the jurisdictional aspect was raised before the tribunal and this court, nothing is forthcoming to substantiate the said contention and there is no specific bar as well for the claimant to file a claim petition before the tribunal at hyderabad inasmuch as the Head office of the employer is located at Hyderabad having its branches expanded all over the State. ( 15 ) I do not find any other question of law much less substantial question of law in addition to the grounds raised in the present appeal and discussed above. ( 16 ) FOR the foregoing reasons, I do not find any merit in the present Civil miscellaneous Appeal and the same is liable to be dismissed. ( 17 ) ACCORDINGLY, the Civil Miscellaneous appeal is dismissed, at the stage of admission. However, there shall be no order as to costs.