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2011 DIGILAW 107 (DEL)

Shanti Sales Corporation v. Mohammad Hasan

2011-01-19

MOOL CHAND GARG

body2011
ORDER Moot Chand Garg, J. 1. There is absolutely no evidence led before the Workmen's Commissioner on behalf of the Respondent to show as to how the Respondent claims relationship of employer and employee with that of the Appellant management. The D.D. Entry on which reliance has been placed was lodged by the persons who never came to the witness box. The witnesses who have appeared deposed that the accident took place on 5.6.2004, whereas according to the case of Respondent the accident took place on 9.6.2004 Thus, there is a material contradiction. 2. In any event, when there is no evidence available on record directly or indirectly which may connect the Respondent with the Appellant, the Respondent cannot fasten a liability under the Workmen's Compensation Act against the Appellant. Moreover, in this case the Respondent submits that he was working as Palledar with the Appellant for 25 years but has not filed even an iota of evidence to prove that relationship. 3. According to the Appellant, the onus to prove the relationship is always upon the workman so as to establish the relationship of employer and employee for establishing the cause of action for claiming compensation in case of suffering with any injury during the course of or out of employment, which has not been done. Reference has been made to the following judgments: (i) Chander Sain and Ors. v. J.B. Garments, 160 (2009) DLT 18; (ii) Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. and Ors., III (2004) SLT 180: (2004) 3 SCC 514 ; and (iii) National Insurance Co. Ltd. v. Dharampal and Ors., 2008 (100) DRJ 380 . 4. In these circumstances, when there was no evidence at all on record to connect the claimant under the employment of the Appellant there was no occasion for the Workmen's Commissioner to grant compensation, which has been done in this case. It may be observed here that even there is no relationship of a casual workman in this case. 5. The Respondent has relied upon a judgment delivered by the Hon'ble Supreme Court in the case of Maghar Singh v. Jashwant Singh, reported in Accident and Compensation CD Rom 1997 ACJ 517, and states that even circumstantial evidence can be looked into. 5. The Respondent has relied upon a judgment delivered by the Hon'ble Supreme Court in the case of Maghar Singh v. Jashwant Singh, reported in Accident and Compensation CD Rom 1997 ACJ 517, and states that even circumstantial evidence can be looked into. However, in that case the Hon'ble Supreme Court has taken note of the fact that the claimant was a workman under the employment of the Appellant but no such evidence is available on record. Hence that judgment is of no application in his case. 6. Respondent has also relied upon other two judgments (i) Messrs. Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ritta Farnandes, 1969 A.C.J. 419 and (ii) Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ibrahim Mahmmod Issak, 1969 A.C.J. 422; but nothing stated in those judgments enables a person, who is not an employee of the management, to claim compensation. 7. The liability to pay compensation arises out of Section 3 of the Workmen's Compensation Act, 1923, that is to say, for the purpose of holding the employer responsible for the injury caused to the person, who claims to be a workman, the injury should have been caused 'in the course of the employment' mean 'in the course of the work which the workman is employed to do and which is incidental to it'. The words 'arising out of employment' are understood to mean that 'during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered'. 8. In the case of Messrs Mackinnon Mackenzie and Co. Pvt. Ltd. v. Ritta Farnandes (supra), while making the aforesaid observations, the Hon'ble Supreme Court further observe that: In other words, there must be a causal relationship between the accident and the employment. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. The expression "arising out of employment" is again not confined to the mere nature of the employment. The expression applies to employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises "out of employment." To put it differently, If the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own Imprudent act. 9. In the same judgment, it has been further observed: In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course Impossible to lay down any role as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. 10. Even by applying the aforesaid ratio to the facts of this case, I find that the Respondent/workman has not been able to establish even casual relationship of employer and employee between him and the management and, therefore, neither this judgment nor the other judgments relied upon by the Respondent comes to the rescue of the Appellant. 11. Accordingly, the appeal is allowed and the impugned order dated 4.11.2009 passed by the Workmen's Commissioner is set aside. 12. The amount deposited by the Appellant with the Workmen Commissioner be returned back by the Commissioner to the Appellant. CM No. 322/2010 In view of the orders passed above, application stands disposed of.