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2016 DIGILAW 621 (BOM)

United India Insurance Company Ltd. v. Ashok

2016-03-29

A.S.CHANDURKAR

body2016
JUDGMENT : This appeal filed under Section 30 of the Employees Compensation Act, 1923 (for short, the said Act) raises the following substantial question of law : “Whether the Commissioner, Workmen's Compensation was justified in holding that there was an employer-employee relationship between the respondents without giving due weightage to the award passed by the Labour Court on 29th January, 2003 wherein it was held that there was no employer-employee relationship between the parties and the said award had reached finality ?” Facts giving rise to present appeal are that the respondent No.1 claims to have been serving as a driver on a vehicle owned by the respondent No.2. According to the respondent No.1 on 30/12/1997 he was driving a tanker owned by the respondent No.2 for fetching diesel from Bhilai. The said vehicle met with an accident near Gondia resulting in the respondent No.1 sustaining various injuries. According to respondent No.1 on account of aforesaid accident, he became handicapped and suffered 40% permanent disability. The respondent No.1 claimed that he was entitled for compensation on account of injuries sustained during the course of his employment. The tanker in question was insured by respondent No.2 with the appellant Insurance Company. Hence respondent No.1 filed an application under Section 10 of the said Act claiming compensation of Rs.98,856/- from the owner of the vehicle and the Insurance Company. 2. The application was opposed by the Insurance Company on the ground that the accident occurred due to negligence of the driver. It was further denied that there was a relationship of employer-employee between the respondent No.2 and the respondent No.1. No reply was filed by the respondent No.2. 3. Before the learned Commissioner, the respondent No.1 examined himself below Exhibit-44. He also examined a doctor at Exhibit-94 to prove his disability. No other evidence was led. The learned Commissioner after considering the material on record came to the conclusion that the accident occurred out of and in the course of employment. The respondent No.1 was therefore granted compensation of Rs.98,870/-. The claim was liable to be satisfied by the appellant. Being aggrieved, the present appeal has been filed. 4. Shri B. Lahiri, the learned counsel for the appellant submitted that in absence of the relationship of employer-employee between the respondent No.2 and the respondent No.1, the Insurance Company could not be saddled with the liability to pay compensation. The claim was liable to be satisfied by the appellant. Being aggrieved, the present appeal has been filed. 4. Shri B. Lahiri, the learned counsel for the appellant submitted that in absence of the relationship of employer-employee between the respondent No.2 and the respondent No.1, the Insurance Company could not be saddled with the liability to pay compensation. He submitted that the respondent No.1 had initiated proceedings before the Labour Court at Balaghat, Madhya Pradesh under provisions of Industrial Disputes Act, 1948. In said reference proceedings which were decided on 29/01/2003 (Exhibit-82), it was held by the Labour Court that there was no relationship of employer-employee between the said parties. He then submitted that the order passed by the Labour Court at Exhibit-82 had attained finality and therefore the same was binding on the respondent No.1. Therefore according to the learned counsel, as the respondent No.1 was not a “workman” within the meaning of Section 2(i)(n) of the said Act as it then stood, the appellant could not have been saddled with the liability to satisfy the claim for compensation under Section 10 of the said Act. In support of his submissions, the learned counsel relied upon the judgments of Honourable Supreme Court in Laxminarayana Shetty vs. Shantha and anr., 2002 (94) FLR 658 and Central Mine Planning and Design Institute Ltd. vs. Ramu Pasi and anr., 2006 Vol. I CLR I. It was therefore submitted the impugned judgment was liable to be set aside. 5. The respondents though served have not entered appearance to contest the appeal. However, with the assistance of the learned counsel for the appellant, I have perused the records of the case. Having given due consideration to the submissions as canvassed, I am of the view that the appeal deserves to be allowed. The evidence on record indicates that on 30/12/1997, when the respondent No.1 was driving a tanker owned by respondent No.2, the same met with an accident resulting in respondent No.1 sustaining various injuries. The aspect to be examined is whether the respondent No.1 is entitled to be compensated for the same under provisions of Section 10 of the said Act. 6. The accident in question occurred on 30/12/1997. The aspect to be examined is whether the respondent No.1 is entitled to be compensated for the same under provisions of Section 10 of the said Act. 6. The accident in question occurred on 30/12/1997. The expression “workman” as defined by Section 2(1)(n) of the said Act as it then stood reads thus : “workman” means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business who is a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in an administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II or …...” The aforesaid provisions of Section 2(1)(n) were thereafter amended by Act 46 of 2000 with effect from 08/12/2000 and the words “other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business” came to be omitted. From the aforesaid provisions, it is clear that when the accident occurred on 30/12/1997, the expression “workman” did not include a person whose employment was of a casual nature. The said provisions have been considered by the Honourable Supreme Court in Central Mine Planning and Design Institute Ltd. (supra) and it has been held therein that the said expression did not intend to cover a casual worker. Similar view has been taken in Laxminarayana Shetty (supra) by observing that person doing contractual work would not qualify as a 'workman' under the said Act. The legal position is therefore clear that on the date of accident, the respondent No.1 who was given a contract for driving a tanker for a particular day cannot be treated to be a 'workman' under Section 2(1)(n) of the said Act. 7. The matter can be viewed from another angle. As per the order dated 29/01/2003 passed by the learned Presiding Officer under provisions of Industrial Disputes Act, 1948 (Exhibit-52), on 30/12/1997 as the regular driver-employee of the respondent No.2 was not available, the respondent No.1 was assigned the job of driving said vehicle on payment of Rs.500/-. 7. The matter can be viewed from another angle. As per the order dated 29/01/2003 passed by the learned Presiding Officer under provisions of Industrial Disputes Act, 1948 (Exhibit-52), on 30/12/1997 as the regular driver-employee of the respondent No.2 was not available, the respondent No.1 was assigned the job of driving said vehicle on payment of Rs.500/-. In said judgment it has been held that the respondent No.1 was not qualified to drive the tanker in question and that he had been assigned the job of driving the tanker as a stopgap arrangement. It was therefore concluded that there was no relationship of employer-employee between said parties under the provisions of Industrial Disputes Act, 1948. As stated above, this adjudication has attained finality. The adjudication by the Labour Court therefore fortifies this position. These aspects however, have not been considered by the learned Commissioner while deciding the application for grant of compensation. The Commissioner has merely proceeded on the basis that as the respondent No.1 was temporarily engaged in driving vehicle, he was entitled to be compensated. This view is contrary to the legal position stated herein above. 8. In view of aforesaid, the substantial question of law is answered by holding that in absence of an employer-employee relationship between the respondents, the learned Commissioner was not justified in holding the appellant liable to pay compensation. 9. Accordingly the following order is passed : The judgment dated 19/10/2005 in W.C.A. No.1/99 is quashed and set aside. It would be open for the respondent No.1 to proceed against the respondent No.2 in accordance with law. The first appeal is allowed with no order as to costs.