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Karnataka High Court · body

2019 DIGILAW 1344 (KAR)

B. H. Abdul Hameed v. Monappa

2019-06-19

B.VEERAPPA

body2019
JUDGMENT : B. Veerappa, J. The claimant filed the present appeal against the judgment and Order dated 27.11.2015 made in ECA No.3/2014 on the file of the Prl. Senior Civil Judge and Commissioner for Employees Compensation, Belthangady, dismissing the claim petition. 2. It is the case of the appellant/claimant that he was working as a cleaner in the lorry owned by the first respondent and on 21.05.2010 when the logs were being unloaded from the lorry, the driver of the lorry suddenly moved the vehicle back. As a result the claimant/cleaner who was standing behind the lorry was hit by the log which fell from the lorry. Due to the impact, the claimant sustained fracture of both bones of left leg. The owner of the saw mill lodged police complaint as per Ex.P.2. The jurisdictional police registered FIR as per Ex.R.1. Therefore, the claimant filed claim petition seeking compensation. 3. The first respondent, owner of the lorry filed objections and denied the averments that the claimant was working as cleaner under the first respondent, as on the date of the accident, as alleged. The lorry was insured with the second respondent. He also denied the fact that the accident occurred on 21.05.2010. Once the relationship between the claimant and first respondent as master and servant is denied, the question of entitlement for Rs.3,00,000/- as compensation would not arise and therefore, sought for dismissal of the claim petition. 4. Considering the averments made in the claim petition and the objections raised, the Commissioner for Employees Compensation, framed the following issues: XXX XXX 5. In order to establish his case, the claimant examined himself as P.W.1, examined the doctor as P.W.2 and marked documents Exs.P.1 to P.5. 6. After considering the material on record, the Commissioner recorded a finding that the claimant failed to prove that he is an employee as contemplated under Section 2(1)(dd) of the Employees Compensation Act, 1923, and failed to prove that he was a working as a cleaner and the accident occurred during the course of employment. When the claimant is not an employee, the question of payment of compensation would not arise. Accordingly, the Commissioner for Employees Compensation, by the impugned judgment and order, dismissed the claim petition,. Hence the present appeal is filed by the claimant. 7. I have heard the learned counsel for the parties to the lis. 8. When the claimant is not an employee, the question of payment of compensation would not arise. Accordingly, the Commissioner for Employees Compensation, by the impugned judgment and order, dismissed the claim petition,. Hence the present appeal is filed by the claimant. 7. I have heard the learned counsel for the parties to the lis. 8. The Sri Guruprasad, learned counsel for the appellant/claimant contended that the impugned judgment and order passed by the Commissioner for Employees Compensation dismissing the claim petition is erroneous and contrary to the material on record and is liable to be set-aside. He further contended that on the basis of the complaint made by the owner of the saw mill as per Ex.P.2 jurisdictional police registered a complaint as per Ex.P.1. The Commissioner ought to have taken into consideration the evidence of P.W.1 and material documents Exs.P.1 and P.2. He would further contended that the accident occurred on account of the negligence on the part of the driver of the lorry bearing registration No.KA-18/AA-1001 as he suddenly moved the vehicle as a result, the appellant/claimant who was standing behind the lorry was hit by the log which fell from the lorry and sustained injuries during the course of employment. Therefore, the Commissioner ought to have held that the accident occurred during the course of employment and should have awarded compensation. The same has not been considered by the Commissioner. He further contended that the appellant has spent Rs.37,882/- towards medical expenses and needs another Rs.30,000/- for further medical expenses. The said aspect has not been considered. Therefore, he sought to allow the appeal. 9. Per contra, Sri Ashok N Patil, learned counsel for the second respondent/insurer sought to justify the impugned judgment and order and contended that the first respondent under whom the claimant was working as cleaner, denied that the claimant was working under him and admittedly the claimant has not examined either the owner of the vehicle or the complainant. In the absence of the same, the Commissioner was justified in passing the impugned judgment and order, and sought to dismiss the appeal. 10. This Court, while admitting the appeal, on 03.03.2017, called for the records. 11. In the absence of the same, the Commissioner was justified in passing the impugned judgment and order, and sought to dismiss the appeal. 10. This Court, while admitting the appeal, on 03.03.2017, called for the records. 11. Having heard the learned counsel for the parties, the only point that arises for consideration is: "Whether the Commissioner is justified in dismissing the claim petition without considering Exs.P.1 and P.2 while determining the relationship between the parties as employer and employee?" 12. It is the specific case of the claimant that he was working as a cleaner in the lorry owned by the first respondent and accident occurred out of and during the course of employment due to the negligence on the part of the driver of the lorry. The same is denied by the first respondent by filing objections stating that the claimant never worked under him as cleaner, as alleged. It is also not in dispute that based on the complaint lodged by the owner of the saw mill, the jurisdictional police registered a case in Crime No.85/2010 under Sections 279 and 337 of the Indian Penal Code. What happened to the criminal case registered against the driver of the lorry is not forthcoming. The Commissioner, considering the entire material on record, has recorded a finding that, though the saw mill owner lodged complaint as per Ex.P.2, the claimant is not examined to show that he was working under respondent No.1 and the accident occurred during the course of employment. The complainant also not examined first respondent who is the owner of the lorry allegedly involved in the accident. The complainant in his evidence, has stated under: XXXX After unloading half of the load of wooden logs in one place and proceeded to another place of the yard of Madeena Saw mill to unload the rest of the wooden logs from the lorry. Thus, when the petitioner was giving signal to the driver to take the lorry in reverse direction. At that time, the driver of the lorry had taken the same in reverse direction in a negligent manner, that juncture one wooden log fell on the petitioner due to which the petitioner sustained fracture of tibia and fibula to the left leg." 13. At that time, the driver of the lorry had taken the same in reverse direction in a negligent manner, that juncture one wooden log fell on the petitioner due to which the petitioner sustained fracture of tibia and fibula to the left leg." 13. But in the cross-examination he has stated against his own evidence and has not produced any material document in order to examine the owner of the vehicle. Therefore, the Tribunal was of the view that the claimant is not entitled to any relief. 14. This Court, in the case of New India Insurance Company Limited vs Showkath, (2011) ACJ 2234 para 17 has held as under: 17. Section 3 of the Workmen's Compensation Act mandates that employer has to pay compensation in case of an injury caused to a workman by accident arising out of and in the course of employment. Thus, an employee has to cross the threshold bar by tendering evidence and establishing the fact that he was employed by his employer in the event of there being a denial by the employer. In the instant case, as noticed hereinabove, there is total denial of the relationship. When such being the case, the contention of Mr. Rudragowda, that self-serving testimony was sufficient to accept that there exists relationship of employer and employee between the parties and on account of non-examination of the driver of the lorry by the claimant, it has to be inferred that there exists relationship of employer and employee is to be examined with circumspection. As stated hereinabove, initial burden is to be discharged by the employee, by producing prima facie material/evidence to demonstrate that he was working under the respondent No. 2 in the lorry involved in question either by examining any other co-employee or any other independent witness. In the instant case there is no material of whatsoever nature produced to hold that such relationship exists. Self- serving testimony would not be safe to rely upon particularly in view of employer denying the relationship by not only filing the statement of objections but also when he has entered the witness-box and denied such relationship. In the absence of the said material, it cannot be held that there exists any relationship of employer and employee. Self- serving testimony would not be safe to rely upon particularly in view of employer denying the relationship by not only filing the statement of objections but also when he has entered the witness-box and denied such relationship. In the absence of the said material, it cannot be held that there exists any relationship of employer and employee. Except the self-serving testimony of the claimant there was no other material produced by the claimant to establish the relationship of employer and employee in the instant case. Hence, the contention of respondent's counsel that owner of the vehicle, namely, the employer had to prove that there was no relationship by examining the driver of the vehicle cannot be accepted as it would amount to calling upon a party to tender negative evidence. As such, I am of the considered view that claimant has failed to establish that there exists relationship of employer and employee. Accordingly, Question No. 2 is answered in favour of the appellant and against respondent No. 1. 15. In view of the aforesaid reasons and specific denial by the owner of the vehicle and in the absence of examination of either the owner or the complainant, the substantial question of law framed in this appeal has to be answered in the affirmative holding that the Commissioner is justified in not believing Exs.P.1 and P2. Therefore, no substantial question of law is involved in this appeal. 16. For the reasons above, impugned judgment and order passed by the Commissioner rejecting the claim petition is just and proper. The appellant has not made out any ground to interfere with the impugned judgment and order in exercise of power under the provisions of Section 30(1) of the Employees Compensation Act, 1923. Accordingly, appeal is dismissed.