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2010 DIGILAW 28 (MP)

ORIENTAL INSURANCE CO. LTD. v. KRISHNA DEVI

2010-01-08

SANJAY YADAV

body2010
Judgment Sanjay Yadav,J. ( 1. ) Aggrieved of the award dated 30-10-2009 by Commissioner, Workmens Compensation cmu Labour Court,Shahdol, the appellant/non-applicant, Insurance Company prefers this appeal under section 30 of the Workmens Compensation Act, 1923. ( 2. ) The brief facts giving rise to the claim application before Commissioner, Workmens Compensation by the respondents No. 1 and 2, widow and the mother of deceased Dharma Prakash Pandey are that on 23-1-2003,the deceased while employed as Tractor Driver in the employment of respondent No. 3, died when the tractor bearing registration No. MP. 18/9108 which he was driving turned turtle. The tractor was insured with the appellant/respondent. ( 3. ) In a claim by respondents No. 1 and 2, it was stated that the deceased immediately after his marriage had separated from father and earning his livelihood as driver of the tractor which belonged to his father. The deceased was having a valid licence of driving. ( 4. ) The Insurance Co., appellant herein, denied the allegations regarding relationship of an employer and employee between father and son and father denied the information about the accident by respondent No. 1, the owner. The appellant/respondent also disputed age of the deceased, which according to them was 33 years and not 27 as claimed. Insurance of the vehicle was also denied. ( 5. ) The Commissioner Workmens Compensation allowed the claim application by awarding a sum of Rs.3,97,507/- to be paid by the appellant/Company within forty days failing which it was ordered that they will be liable for 30% penalty. ( 6. ) The appellant/Company questions the legality of award on the following substantial questions of law : (i) Whether in the absence of independent and convincing evidence, a son can be said to be a workman under the employment of his father? (ii)Whether a presumption of collusion and malafides is there when the deceased workman and the employer are near relatives like father and son, husband and wife etc.? (iii) Whether the finding of deceased being in the employment of his own father being without any evidence is sustainable in law? (iv) Whether in the absence of workman-employee relationship, Commissioner for Workmens Compensation has any jurisdiction to entertain claim application or not? ( 7. (iii) Whether the finding of deceased being in the employment of his own father being without any evidence is sustainable in law? (iv) Whether in the absence of workman-employee relationship, Commissioner for Workmens Compensation has any jurisdiction to entertain claim application or not? ( 7. ) The appellant has thus set up this appeal under section 30 of the Act of 1923 on the ground that in order to get a claim, a false case of employer and employee has been set up by the widow and mother of the deceased in collusion with father, owner of the tractor. ( 8. ) The onus was thus on the appellant to have proved the fact that deceased was not in the employment of the father. No evidence seems to have been brought on record to that effect. On the contrary the Commissioner, Workmens Compensation on the basis of positive evidence led on behalf of the claimant regarding the deceased being in the employment of respondent No.1. Merely because respondent No. 1 and deceased are father and son a presumption cannot be drawn that the son could not have been in the employment of his father. Though an assistance is being sought for by the appellant from the judgment in Gottumukkala Appaia Narasimha Raju v. National Insurance Company Ltd. (AIR 2007 SC2907), that was a case wherein the owner of the tractor, being wife of the deceased, raise a contention that she and her husband had been living separately prior to the date of accident and the tractor in question being insured with the Insurance Company she was not liable to pay any amount to the claimant by way of compensation. The Apex Court on a finding that no such case being made out held that the insurance company was rightly exonerated. ( 9. ) In the case at hand there is a specific finding that the deceased was employed as driver to drive the tractor owned by respondent No. 1. The Commissioner, Workmens Compensation held : ( 10. ) Section 30 of the Act of 1923 provides that its only substantial question of law which facilitates the maintainability of appeal. ( 9. ) In the case at hand there is a specific finding that the deceased was employed as driver to drive the tractor owned by respondent No. 1. The Commissioner, Workmens Compensation held : ( 10. ) Section 30 of the Act of 1923 provides that its only substantial question of law which facilitates the maintainability of appeal. It stipulates : "30.Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely : (a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (a3)an order awarding interest or penalty under Section 4-A; (b)an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant; (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or (e)an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b),unless the amount in dispute in the appeal is not less than three hundred rupees: Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties. Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section." ( 11. (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section." ( 11. ) In the case at hand the appellant raises a question as to whether a son can be in an employment of a father, the owner of the vehicle. The question as proposed emanates from the presumption that a son cannot be in the employment of a father; this extreme proposition has no foundation. ( 12. ) In the result appeal fails and is hereby dismissed. Appeal dismissed.