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2012 DIGILAW 47 (BOM)

Vijayabai Birbal Rathod v. Raju Ramchandra Dhamne

2012-01-09

A.V.POTDAR

body2012
Judgment This first appeal is directed against the judgment and award dated 30.01.2010 passed by Commissioner, under the Workmen's Compensation Act u/s 30 of the Workmen's Compensation Act. 2. Admit. 3. By consent, heard finally. 3A. Appellant No.1, who is the mother and guardian at law of appellants No.2 to 4, had filed an application u/s 22 r/w Schedule 4 of the Workmen's Compensation Act, claiming compensation of Rs.3 lakhs from the respondent alleging that her husband, namely Birbal Rathod, was serving as Manager with the respondent and has met with an accident and expired during the course of employment of the respondent on 12.06.2008. 4. It appears that the respondent had appeared in the said application and resisted the same on various grounds, including that the court had no jurisdiction to try and entertain the application so also that at the relevant time the deceased was not in his employment. It was also contended that the accident has not occurred during the course of employment. It was further averred that as there was no employer employee relationship between the deceased and the respondent and as the accident has not occurred during the course of employment, the respondent is not liable for the compensation u/s 22 of the Workmen's Compensation Act. 5. Record indicates that on the basis of these pleadings, the trial court had framed total 7 issues including the issue as to the relationship between the deceased and the respondent and as to whether the accident occurred during the course of employment. Thereafter the trial court directed the parties to led evidence. In support of their case the appellants had examined appellant No.1 so also uncle of the deceased and one State Excise Inspector Mr.Fulpagare. The appellants had also produced various documents like complaint of the accident, spot Panchanama, inquest Panchanama, Postmortem report so also some correspondence with the insurance company. Mr.Fulpagare, Inspector, State Excise, had produced requisite documents like Naukarnama etc. In support of his case, the respondent had examined himself so also had tendered certain documents. On appreciation of the evidence on record, trial court dismissed the application filed by the appellants, by observing that the appellants failed to establish employer-employee relationship between the deceased and the respondent. It is further observed that the accident was not occurred during the course of employment and hence rejected the application. On appreciation of the evidence on record, trial court dismissed the application filed by the appellants, by observing that the appellants failed to establish employer-employee relationship between the deceased and the respondent. It is further observed that the accident was not occurred during the course of employment and hence rejected the application. The said judgment is impugned in the present first appeal. 6. In this background heard learned counsel Mr.Patil for the appellants followed by the submissions of Mr.Nandode learned counsel for the respondent. Both the learned counsel took me through the entire record including impugned judgment as well as oral and documentary evidence. Considering the submissions advanced before me and in the light of section 30 of the Workmens Compensation Act and the provisions appended thereto, following points arise for my consideration 1) Is it proved by the appellants that at the time of the accident on 12.06.2008, deceased Birbal was in the employment of the respondent? 2) Is it further proved by the appellants that the accident dated 12.06.2008 occurred during the course of employment? 3) What order? 7. Finding on points No.1 and 2 -Undisputedly, the incident occurred on 12.06.2008 at Ajande (Kh) near Shirpur on Bombay-Agra National Highway No.3. It is also not disputed that the said accident occurred due to the dash given by the motorcycle driven by deceased Birbal to a tree. It is further not disputed that the place where the accident took place is about 170 km away from the place of business i.e. Hotel run by the respondent at Nandgaon, Dist-Nashik. The issue as to whether at the relevant time there was existing employer employee relationship between the deceased and the respondent is required to be considered in the light of the fact that the accident has occurred about 170 km away from the alleged place of employment of deceased Birbal. Learned counsel for the appellants vehemently urged that the Legislation i.e. Workmen's Compensation Act is a social legislation and the rules of Civil Procedure Code and the Indian Evidence Act would not be strictly applicable to it. He would further submit that the nature of the proceedings has to be treated as summary proceedings. The evidence on the document will have to be assessed bearing in mind the submissions advanced on behalf of the appellants. 8. Primarily, evidence of Mr. He would further submit that the nature of the proceedings has to be treated as summary proceedings. The evidence on the document will have to be assessed bearing in mind the submissions advanced on behalf of the appellants. 8. Primarily, evidence of Mr. Fulpagare, Excise Inspector would play a very vital role in deciding this appeal. This witness was examined on behalf of the appellants. At the time of examination in the Court, he was called upon to produce the Naukarnama. He had produced the original applications moved by the respondent with the State Excise department, disclosing the information about the employees working in his hotel. Few original applications along with the challan and the acknowledgment issued by the office of the State Excise are at Exhibit-W4 collectively. Perusal of the said applications would reveal that the application moved on 28.03.2006 was for the period 01.04.2006 to 31.03.2007 so also the application moved on 31.03.2007 was for the period April 2007 to 31.03.2008 wherein the name of deceased Birbal appears as working as Manager along with three others with the respondent. The last application filed along with list is received by the office of the State Excise on 31.03.2008 and the same was for the period 01.04.2008 to 31.03.2009, i.e. for the relevant period, however name of deceased Birbal does not appear in the same as working with the respondent as Hotel Manager or in any other capacity. Thus, from the record tendered by the Excise Inspector before the trial court, it is clear that deceased Birbal was not in employment with the respondent during the relevant period i.e. from 01.04.2008 onwards and more precisely on 12.06.2008. Learned counsel for the appellants vehemently urged that in view of the admissions given by the Excise Inspector it has to be held that once the name of the employee is entered in the register maintained by the State Excise, then the same remains in the same, unless specifically removed. However, perusal of the said record indicates that name of deceased Birbal was entered in the register of the State Excise, however, the entire page of the said register is blank and does not indicate as to when the name of the deceased was entered in the said register. However, perusal of the said record indicates that name of deceased Birbal was entered in the register of the State Excise, however, the entire page of the said register is blank and does not indicate as to when the name of the deceased was entered in the said register. The Excise Inspector is the only competent authority under law to speak on this aspect, however the record produced by him before the Court speaks otherwise than the contentions raised by the appellants. Thus, there is no substantive evidence on record to indicate that the deceased was in the employment of the respondent on the date of the accident i.e. on 12.06.2008. 9. Apart from the above discussion, fact remains that the accident took place at the distance of about 170 km away from the place of business of the respondent. Though it is urged by learned counsel for the appellants that the accident had occurred during the course of employment, yet as already concluded the evidence on record is not sufficient to hold the employer employee relationship between the deceased and the respondent. Other than this, considering the distance of 170 km, and in absence of any evidence in this respect, it can safely be inferred that one may not depute the manager to do some work at such a long distance. Considering this aspect and even assuming that no record is maintained by the respondent in respect of service of his employees, it can be inferred that the respondent-employer will be liable for prosecution under different legislations i.e. Labour laws, however, certainly it is not sufficient to establish that the deceased was in the employment of the respondent at the relevant time. Moreover, certain admissions are given by the witnesses examined on behalf of the appellants that the deceased had gone to attend marriage of his relative near the place of incident at the relevant time. It appears that certain statements were recorded by the police after the accident, however the same cannot be relied on in this appeal as substantive piece of evidence. Unless it is positively proved by cogent evidence that the deceased expired during the course of employment, it is not safe to infer that deceased expired during the course of employment. It appears that certain statements were recorded by the police after the accident, however the same cannot be relied on in this appeal as substantive piece of evidence. Unless it is positively proved by cogent evidence that the deceased expired during the course of employment, it is not safe to infer that deceased expired during the course of employment. Though the death of the deceased is untimely as well as unfortunate, yet it cannot be inferred that the deceased met with an accidental death while he was in employment with the respondent and during the course of his employment he met with unfortunate death. In the light of the above discussion, finding on points No.1 and 2 to be answered in negative. 10. Finding on point No.3 -Once it is concluded that there was no employer-employee relationship between the deceased and the respondent so also it has concluded that the accident did not take place during the course of employment, then no interference is warranted in the judgment and award impugned in the present appeal. 11. Consequently, the appeal, which is sans merits, stands dismissed. In view of the peculiar facts and circumstances of the case, no order as to costs.