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2007 DIGILAW 1320 (BOM)

Narayan Sahadu Patil v. Kalashri Vijay Dhamke

2007-09-12

V.R.KINGAONKAR

body2007
JUDGMENT : 1. The First Appeal and Cross Objection arise out of judgment rendered by the Commissioner for Workmen’s Compensation (Labour Court), Jalgaon, in proceeding under Section 4A of the Workmen’s Compensation Act, 1923. 2. The appellants are original claimants, who had filed an application for compensation of Rs.1,00,000/- (Rupees One Lac) along with interest and penalty on account of accidental death of Kailas Patil. They asserted that they are dependants of deceased Kailas. Appellant Nos. 1 & 2 are his parents. Appellant Nos. 3 & 4 are his brother and sister, whereas appellant Nos. 5 & 6 are his wife and minor daughter. Respondent - Smt. Kalashri is owner of Ambassador Car bearing Registration No. MH-C-7901. 3. The appellants’ case, briefly stated, is that deceased Kailas was employed as driver on the Ambassador car vehicle of the respondent. His salary was of Rs. 700/- besides bhatta of Rs.300/- per month. In the night between 12th and 13th April, 1998, he was driving the Ambassador Car on Parola-Nasik Road. The Ambassador Car was given severe dash by a truck vehicle which speedily came from opposite direction, at a place near village Daregaon. The front portion of the car vehicle was pressed, substantially damaged and said Kailas sustained multiple injuries which caused his death. The death occurred in harness. They lost dependency due to death of the only bread winner of the family. Consequently, they filed application for compensation. 4. The respondent denied that deceased Kailas was employed as a driver on her car vehicle. She denied that he died in harness and was on duty in the course of employment. She also denied that he was paid monthly salary of Rs. 700/- along with bhatta of Rs.300/-. According to her, the Ambassador car was being used only for private purposes, but it was temporarily given in that night for use of one Indarchand Sindhi, who resides in the same locality, as he desired to go to Ulhasnagar to attend funeral of his father. She contended that she had expressed difficulty as the regular driver was not available but said Indarchand assured to arrange for driver and had engaged said Kailas Patil to drive the vehicle, in the relevant night. Thus, chief bone of her defence was that deceased Kailas had not met with death in the accident arising out of and in the course of his employment with her. Thus, chief bone of her defence was that deceased Kailas had not met with death in the accident arising out of and in the course of his employment with her. Hence, she urged to dismiss the appeal. 5. The parties went to trial over certain issues framed by the Commissioner. They adduced oral and documentary evidence in support of the rival contentions. The Commissioner held that the deceased was involved in the vehicular accident and died during the course of his employment with the respondent. The Commissioner further held that deceased Kailas was employed as a driver on the Ambassador car at the relevant time on salary of Rs.700/- along with Bhatta of Rs.300/- per month. The Commissioner also accepted the case of appellants that they are dependents of deceased Kailas. The Commissioner, however, dismissed the application only on the ground that deceased Kailas was not holding a valid driving license at the time of accident. The Commissioner held that unless it is proved that the driving license of deceased Kailas was valid at the relevant time, the dependents would not be entitled to claim compensation. 6. Feeling aggrieved, original claimants have preferred the appeal. The respondent filed cross objection against the adverse findings rendered by the Commissioner of Workmen’s Compensation. According to the respondent, the findings regarding employment of deceased Kailas Patil with the respondent and the monthly salary agreed to be paid are the perverse findings and, therefore, liable to be set aside. 7. Mr. Mantri, learned Advocate for the appellants would submit that the Commissioner abruptly rendered finding regarding absence of valid driving license though no such issue was raised on the basis of pleadings of the parties. He would submit that the Commissioner could not have gone into the question of valid driving license when the driving license was found with the deceased and the only remark made by the Investigating Officer was that outer time limit about validity of the license was not shown thereon. It is argued that the deceased was required to drive the vehicle as per orders of the respondent. Hence, the respondent cannot escape liability on account of such technical defence. Mr. Mantri submitted that due to dilatory tactics of the respondents, the applicants are subjected to injustice and have not received any compensation though the death of Kailas occurred in the course of employment during April, 1998. Hence, the respondent cannot escape liability on account of such technical defence. Mr. Mantri submitted that due to dilatory tactics of the respondents, the applicants are subjected to injustice and have not received any compensation though the death of Kailas occurred in the course of employment during April, 1998. Per contra, learned advocate Mr. Bankar, appearing for the respondent-owner, would submit that the Commissioner erred in holding that the deceased was employee of the respondent. He contended that the applicants did not discharge burden of proof to prove master and servant relationship between respondent and deceased Kailas. He argued that no documentary evidence such as pay-slip or receipt was produced and therefore inference regarding employment of deceased Kailas with the respondent could not have been drawn. Mr. Bankar urged to allow the cross-objection and set aside adverse findings, rendered by the Commissioner against respondent-owner. 8. The following points arise for determination. (1) Whether in the facts and circumstances of the present case, the Commissioner of Workmen’s Compensation committed patent error while dismissing the application for compensation on the ground that validity of the driving license as on the date of the accident in question was not proved by the applicants and that deceased Kailas had then driven car vehicle without having proper and valid license and thereby had run the risk for his life? (2) Whether the Commissioner of Workmen’s Compensation ought to have awarded due compensation to the applicants? If yes, to what extent? (3) Whether the cross-objection preferred by the respondent is maintainable and whether the findings regarding the employment of deceased Kailas with the respondents on monthly salary of Rs.700/- and bhatta of Rs.300/- are perverse and, therefore, liable to be set aside? . My findings on the above points are (1) YES (2) YES, Rs.80,000/- (3) NO. . The reasons are discussed hereinafter : 9. Before I proceed to consider merits, let it be noted that deceased Kailas died during the course of vehicular accident is an admitted fact. The Commissioner had not raised issue about absence of valid driving license with the deceased. It appears from the impugned judgment that all of a sudden argument was advanced to the effect that deceased Kailas was not having valid driving license and hence in view of "Chhotekhan s/o. Kudru Khan V/s. Rajeshkumar Agrawal" - 1999 I CLR 1192, the claim was unsustainable. It appears from the impugned judgment that all of a sudden argument was advanced to the effect that deceased Kailas was not having valid driving license and hence in view of "Chhotekhan s/o. Kudru Khan V/s. Rajeshkumar Agrawal" - 1999 I CLR 1192, the claim was unsustainable. The Commissioner of Workmen’s Compensation relied upon said case-law of M.P. High Court and accepted the contention of respondent-owner. The Commissioner of Workmen’s Compensation noticed that the panchanamas (Exh. U-14 & Exh. U-17) indicated the fact that deceased Kailas held driving license bearing No. 4797/JAL/84. The only fact which was recorded in the said panchanamas was that the driving license did not show outer limit regarding validity of the same. The fact that deceased Kailas was having driving license is, therefore, manifest from the record. The expiry date of the driving license was, however, not then available from recital of the said panchanamas. That is the only reason as to why the Commissioner rejected the claim application. 10. This is not a case in which there was no ( 9 ) driving license nor it is a case in which deceased Kailas was holding a temporary driving license. The recitals of the panchanama would show that the driving license was found on his person. It was a permanent driving license and was valid for the purposes of driving the car vehicle i.e. Light Motor Vehicle. The only so called defect was that the period of validity and the date of expiry of license could not be ascertained from the entries. The case of "Chhotekhan s/o. Kudru Khan (Supra)" stands on different fact situation. In the given case, the District Transport Officer by name, Jagdish was examined and it was found that the driving license (D-4) was a forged document. Therein insurance company had raised such specific defence and had examined said D.W. Jagdish, the District Transport Officer, to prove that the driving license was forged one. The Division Bench of M.P. High Court observed: "When Jagdish was examined by the insurance company, it was necessary for appellants to prove that the deceased was asked by his employer to drive the said vehicle or was holding valid license as burden of proof shifted." . The Division Bench of M.P. High Court observed: "When Jagdish was examined by the insurance company, it was necessary for appellants to prove that the deceased was asked by his employer to drive the said vehicle or was holding valid license as burden of proof shifted." . It is in the wake of such fact situation that the Division Bench held that: "When the deceased had himself endangered his safety and life by inviting unnecessary calamity, by unnecessary adventure, by engaging in driving of that vehicle, when he was not having valid license, neither the employer nor the insurance company can be asked to pay compensation to the heirs-claimants of such deceased." . In my opinion, the Commissioner of Workmen’s failed to appreciate distinguishing features of the present fact and erroneously applied the case-law referred to above. In the present case, it is duly proved by the appellants that the deceased was asked to drive car vehicle by the employer in the relevant time. It is stated by P.W.1 Narayan that the deceased was driving the car vehicle with five passengers as per instructions of his employer i.e. respondent. This statement of P.W. Narayan was accepted by the Commissioner. The Commissioner of Workmen’s Compensation rejected the defence of the respondent that said Kanhaiyalal Sindhi had engaged Kailas as a temporary driver in the relevant night. Moreover, when the driving licence was found with deceased Kailas then it ought to have been held that burden had shifted on the respondent to prove that the deceased was not holding valid driving license. Though burden of proof shifted on respondent, yet, no evidence was adduced to prove that the licence was invalid. Under the circumstances, the said finding reached by the Commissioner of Workmen’s Compensation is without substratum, illegal and perverse. 11. The case of a person driving with fake driving license stands on altogether different footing. That was noticed by the Division Bench of M.P. High Court in "Chhotekhan s/o. Kudru Khan (Supra)". Herein deceased Kailas held a driving licence of which details are shown in the panchanamas drawn on the spot and while conducting inquest. It is manifest that he was knowing the driving skill. The owner of the vehicle is required to satisfy himself about due eligibility of the driver. Herein deceased Kailas held a driving licence of which details are shown in the panchanamas drawn on the spot and while conducting inquest. It is manifest that he was knowing the driving skill. The owner of the vehicle is required to satisfy himself about due eligibility of the driver. The driver employed by the owner cannot be blamed for any subsequent defect noticed in the driving license, unless it is proved that the driving license is a forged document. The driver of the vehicle, even though there is technical defect in his license at the material time, is required to obey the directions of his employer. Therefore, the employer cannot escape liability of paying compensation to the employee, if he is injured or to his dependants if he dies during the course of the employment. The Commissioner failed to see the question of liability from proper perspective. The finding recorded by the Commissioner in this context is quite unsustainable, improper and unsustainable. 12. Mr. Bankar would submit that the applicants failed to prove contract of employment. He seeks to rely on "Dhyan Singh V/s. Raman Lal" 2001 (88) FLR 230 . The Single Bench of the M.P. High Court observed in the given case that to prove a contract of employment, there has to be a direct evidence to show some nexus between the claimant and the respondent. At the same time, it may be mentioned that the learned Single Judge further held that re-appreciation of oral evidence tendered by the parties cannot be undertaken by the Court in appeal. The only question of law can be examined and not the question of fact. Therefore, the question as to whether the oral evidence of the parties was properly appreciated by the Commissioner is not open for reconsideration. The Commissioner not only considered the oral evidence of P.W. Narayan and others, but also took into account the recitals of the reply given by the respondent to the notice of the applicants. In her reply, the respondent categorically stated that deceased Kailas was employed as a driver on the car vehicle but she further asserted that about three months prior to the accident, he was removed from the service. There is presumption regarding continuity of the state-of-affairs. If she claimed discontinuation of his service, as shown in the reply (Exh.U-24) dated 14.07.1988, then it was for her to prove such a fact. There is presumption regarding continuity of the state-of-affairs. If she claimed discontinuation of his service, as shown in the reply (Exh.U-24) dated 14.07.1988, then it was for her to prove such a fact. It is stated in the reply notice (Exh.U-25) that deceased Kailas was intercepted by Police of Jalgaon and therefore it was gathered that he had no valid driving license. He was, therefore, removed from service as he failed to obtain valid driving license and in his place another experienced licensed driver was engaged. It is further stated in the reply notice that deceased Kailas was, thereafter, employed as a driver on a matador vehicle used for transportation of goods. All these assertions remained on paper. No evidence was adduced except bald version of the respondent to prove such assertions made in the reply notice. Consequently, it is difficult to disturb findings of fact which are rendered by the Commissioner. 13. Mr. Bankar would submit that the respondent has filed an application for production of the documents to show that the license was not valid as on the date of accident and also urged to permit the production as per the Civil Application. He argued that the copy of communication received from the R.T.O., Jalgaon is produced along with affidavit of the respondent and the same may be considered. The contentions of Mr. Bankar are unacceptable. The appeal is a statutory remedy available under Section 30 of the Workmen’s Compensation Act. The finding of fact which is not vitiated by any error of law cannot be reviewed in the appeal. This legal position is well settled in view of Madan Mohan Verma V/s. Mohanlal 1983 TAC 523 and Ghanshyam V/s. Nathu (1987) 2 TAC 304. The applicants had discharged necessary burden of proving the fact that the deceased died during the course of service of the respondent. The burden then shifted on the respondent to show that he was not in her employment and was removed from the services as contended by her. She did not examine the driver engaged in the place of deceased Kailas. She did not examine any witness to show that deceased Kailas was engaged as driver of matador vehicle used for transportation of goods. The applicant’s case is corroborated by the oral evidence of P.W. 2 Pandurang. She did not examine the driver engaged in the place of deceased Kailas. She did not examine any witness to show that deceased Kailas was engaged as driver of matador vehicle used for transportation of goods. The applicant’s case is corroborated by the oral evidence of P.W. 2 Pandurang. His version reveals that the deceased was working as a driver of the respondent at the relevant time. There is no cross-examination directed against him. Further, the version of Indarlal Sindhi reveals that deceased Kailas was driving the car vehicle as employee of the respondent and was engaged by her. He denied the suggestion that he had called deceased Kailas to temporarily drive the vehicle during the relevant night. His version purports to show that the car vehicle was taken on rental basis from the respondent as he and his family members wanted to reach Ulhasnagar in the next morning. It does not stand to reason that only on humanitarian grounds the car vehicle was given by the respondent to Kanhaiyalal Sindhi and Indarlal Sindhi. The explanation of the respondent is quite lame and unacceptable. Even if car was gratuitously given to them, then also it was duty of the owner to ensure that duly authorised driver would drive the car vehicle. The respondent cannot take advantage of her own wrong if at all there was any defect found in driving licence of deceased Kailas. 14. Considering the foregoing reasons, I have no hesitation in holding that the Commissioner of Workmen’s Compensation erred while dismissing the application for compensation. The provisions of Order 41 Rule 27 of the Civil Procedure Code are not applicable. The production of documents at this stage cannot be permitted. The communication received by the respondent, in the context of the validity of the driving licence of deceased Kailas, cannot be read in evidence without proof. No such permission can be granted at the stage of the appeal under Section 30 of the Act. 15. The recitals of the P.M. notes would show that deceased Kailas was aged about 30 years at the time of death. The original school leaving certificate (Exh.U-29) purports to show that his birth date was 01.03.1966. It appears that as per the school record his age was about 22 years. The compensation payable would be in accordance with Section 4A r/w entries in Schedule IV of the Workmen’s Compensation Act. The original school leaving certificate (Exh.U-29) purports to show that his birth date was 01.03.1966. It appears that as per the school record his age was about 22 years. The compensation payable would be in accordance with Section 4A r/w entries in Schedule IV of the Workmen’s Compensation Act. The monthly salary of deceased Kailas was Rs.700/-. The amount of Bhatta i.e. Rs.300/- cannot be treated as part of his salary, because it was being paid to meet out incidental expenditure during the journey. That was travelling allowance and could be consumed for his personal expenditure like extra expenses needed for meals, boarding expenses etc., during the journey period. Thus half of his monthly salary i.e. Rs.350/- multiplied by relevant factor 210.95=76982.50, will be the appropriate sum. It would be legal and proper to hold that the total amount payable is Rs. 80,000/- which is more than the aforesaid amount is proper compensation. The appellants are entitled to receive compensation of Rs.80,000/- from the respondent. 16. In the result, the appeal succeeds whereas the cross-objection fails. The impugned judgment is set aside and the claim application is allowed. The applicants would be entitled to receive compensation of Rs.80,000/- from the respondent which shall be paid by the respondent within one month. In default to pay said compensation within one month, the respondent would be liable to pay interest @ 12% p.a. on the amount of compensation from date of the application till realisation of the entire amount. If the Compensation Commissioner would find that there is no justification for the delay, then he may also direct payment of penalty as required under Sub-Clause (B) of Section 4-A(3) of the Workmen’s Compensation Act, 1923, after giving due opportunity to the respondent. The Commissioner of Workmen’s Compensation shall consider equitable disbursement of the compensation amount amongst appellants. The respondent shall bear her own costs and shall pay costs of the application and this appeal to the applicants which are quantified at Rs.5000/-. The cross-objection stands dismissed.