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2020 DIGILAW 601 (ALL)

Manju Chauhan v. Guddi Devi

2020-02-25

RAJNISH KUMAR

body2020
JUDGMENT : 1. Heard, Ms. Vina Gupta, learned counsel for the appellant and Shri M.K. Dixit, learned counsel for the respondents. 2. The instant First Appeal From Order under Section 30 of The Workmen's Compensation Act, 1923 (here-in-after referred as the Act of 1923) has emanated from the judgment and award dated 22.01.2004 passed in Case No.13/5/3/3/3/1/25 under Section 22 of the Act of 1923 by the Workmen's Compensation Commissioner / Collector, Kheri (here-in-after referred as the Commissioner). 3. As borne out from the pleadings the deceased Shyam Narain, husband of the respondent no.1 and father of the respondents no.2 to 5 had suffered serious injuries in an accident by the engine and died. An application for compensation was filed by the respondent claimants under Section 22 of the Act of 1923 being legal heirs of the deceased Shyam Narain alleging therein that the deceased Shyam Narain S/o Sambharu was a mechanic of engine and used to do the repairing of engines. The appellant Manju Chauhan came to the deceased Shyam Narain on 15.06.1996 and requested to him for repairing of his engine. So, the deceased went to his place for working in his employment and as he started the engine after repairing, one wheel of the engine was broken in three parts due to manufacturing defect from which the deceased got serious injuries. The appellant got him admitted in the district hospital and after primary treatment he was advised for treatment in Lucknow. So, he was taken to Gandhi Memorial Associated Hospital, Lucknow where Shyam Narain died on 17.06.1996 at 09:40 in the morning. 4. The appellant was present at the time of accident on spot and got the deceased admitted in the district hospital so there was no need of giving any legal notice to him. The deceased was over 15 years of age at the time of death and his income was Rs.2,000/- per month. The respondent-claimants tried to settle the matter with compromise but the appellant-respondents did not agree. Since the only source of income for livelihood of the family i.e. the deceased Shyam Narain had died therefore they prayed for compensation to the tune of Rs.2,00,000/-. 5. The appellant filed the written statement denying the averments made in the application and stated that the respondent claimants are not entitled for any compensation. Since the only source of income for livelihood of the family i.e. the deceased Shyam Narain had died therefore they prayed for compensation to the tune of Rs.2,00,000/-. 5. The appellant filed the written statement denying the averments made in the application and stated that the respondent claimants are not entitled for any compensation. It has further been stated that the deceased neither knew the repairing of engine nor he used to work as mechanic. He used to earn his livelihood by doing tenancy. It has also been stated that the appellant had never called the deceased for repairing of the engine and he had no technical knowledge in regard to engine. 6. It has further been stated that despite prohibiting, the deceased had started the engine of the appellant on 15.06.1996 and excessively enhanced the speed and before the speed could be reduced the wheel of the engine had broken due to negligence of the deceased. Therefore, besides the deceased, Om Prakash and Shri Pal were also injured. The appellant was at a distance from the engine. The deceased was neither an employee of the appellant nor he was called for work. An information in regard to the accident was given by the appellant to the Police on the same day and an application was also submitted on 22.07.1996. It has also been stated that the respondent-claimants had admitted that there was manufacturing defect but the manufacturing company was not impleaded who was a necessary party. 7. On the basis of pleadings eight issues were framed. Thereafter, Guddi Devi as PW-1, Ram Asrey as PW-2 and Nandu Ram as PW-3 were got examined on behalf of the respondent-claimants. On behalf of the appellant, Manju Chauhan the appellant himself as DW-1 and Om Prakash as DW-2 were got examined. After considering the pleadings and evidence the learned Commissioner allowed the claim of the respondent-claimants and awarded an amount of Rs.1,18,236/- along with interest @ 9% per annum from the date of accident to be paid to the respondent-claimants as per the apportionment given in the award. Hence the present appeal has been filed challenging the same. 8. Submission of learned counsel for the appellant was that the deceased Shyam Narain was neither called for repairing the engine nor he was in the employment of the appellant. Hence the present appeal has been filed challenging the same. 8. Submission of learned counsel for the appellant was that the deceased Shyam Narain was neither called for repairing the engine nor he was in the employment of the appellant. The accident had occurred due to fault of the deceased as despite prohibing he had started the engine and due to excessive speed, the wheel of the engine was broken, in which besides the deceased, two other persons had suffered the injuries. Since, there was no employer-employee relation between the appellant and the deceased therefore he is not covered under the definition of workman given in the Act of 1923. So no compensation could have been awarded and the learned Commissioner, without considering the material and evidence on record, wrongly and illegally held that the deceased Shyam Narain was in casual employment in agriculture business of the appellant. It has also been submitted that since the deceased had suffered injuries in the accident in question therefore the appellant had got him treated in the district hospital and spent money from where he was referred to Lucknow. 9. On the other hand, learned counsel for the respondent claimants had submitted that the deceased was an engine mechanic. He was called by the appellant for repairing of the engine therefore he was in his casual employment. But despite efforts of the respondent-claimants the appellant was not ready to settle the matter with compromise therefore the claim was filed before the learned Commissioner which has rightly been allowed in accordance with law after considering the pleadings of the parties and evidence. There is no illegality or error in the judgment passed by the learned Commissioner. 10. I have considered the submissions of learned counsel for the parties and perused the record. 11. In view of above, the substantial questions of law involved in this appeal are as to whether the deceased was a workman as defined under Section 2(1)(n) of the Act of 1923 and whether there was any relation of employer and employee between the appellant and the deceased. 12. 11. In view of above, the substantial questions of law involved in this appeal are as to whether the deceased was a workman as defined under Section 2(1)(n) of the Act of 1923 and whether there was any relation of employer and employee between the appellant and the deceased. 12. The relevant provisions of 'The Workmen's (now Employee's) Compensation Act 1923 are extracted below for the convenience:- "(e) "employer" includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship means such other person while the workman is working for him." The definition of workman has been given in Section 2(1)(n) of the Act of 1923, which is reproduced as under:- "(n)" 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-- (i) a railway servant as defined in section 3 of the Indian Railways Act, 1890 (9 of 1890 ), not permanently employed in any administrative, district or sub- divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed 1 2 in any such capacity as is specified in Schedule II. whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of 3 the Armed Forces of the Union] 4 ; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them." 13. The definition of workmen was amended by amendment Act 46 of 2000 and the words "Other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of employer's trade or business" have been omitted. But it would not be applicable on the present case because in the present case the accident is of 15.06.1996. But it would not be applicable on the present case because in the present case the accident is of 15.06.1996. However, even after amendment it is to established that the workman was under the employment of the alleged employer far a claim under the Act of 1923. 14. In view of aforesaid definitions the workman means any person who is employed in any such capacity as specified in the schedule-II. Schedule-II (iii) provides that any person who is employed for the purpose of making, altering, repairing, ornamenting, finishing or otherwise adapting for use, transport or sale any article or part of an article in any premises wherein or within the precincts whereof twenty or more persons are so employed. In state amendment of Uttar Pradesh in Schedule II, after clause (iii), clause (xliii) provides employed in installation, maintenance or repair of pumping equipment used for lifting of water from wells, tub wells, ponds, lakes, streams and the like. 15. Section 3(1) of the Act of 1923 provides the employer's liability for compensation if personal injuries caused to a workman by accident arising out of and in the course of his employment. Therefore, for a claim under the Act of 1923 it is necessary that the workman should be actually working at the time of injury or the accident and the injury must be caused in the course of and out of the employment, which is to be established. The prima facie tests for employer and employee relationship is existence of right in the master to supervise and control the work directly done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do work. 16. From combined reading of above, if persons employed in any premises wherein or within the precincts whereof twenty or more persons are so employed can be treated workmen within the meaning of Section 2(1)(n). Though the schedule has been amended and the words 'wherein or within the precincts whereof twenty or more persons are so employed' has been omitted by Act 45 of 2009 w.e.f. 18.01.2010 but the same is not applicable on the present case because in the present case the accident is of 15.06.1996. 17. The perusal of the record indicates that a claim was filed by the respondent-claimants before the learned Commissioner. 17. The perusal of the record indicates that a claim was filed by the respondent-claimants before the learned Commissioner. The learned Commissioner decided the issues no.1 and 2 without considering the pleadings, evidence and law applicable at the relevant time recording a cryptic finding that it is clear from the statements of local witnesses available on record that the deceased Shyam Narain was a mechanic of engine who had gone to repair the engine of Manju Chauhan i.e. the appellant. In this way the deceased Shyam Narain was in the casual employment in agriculture business of Manju Chauhan while the evidence is otherwise. Since, the deceased Shyam Narain had died in the accident occurred during repairing of engine of Manju Chauhan so his dependents are entitled for compensation under schedule-II, category (xliii) of the Act of 1923. Accordingly, the issues no.1 and 2 are decided against the appellant-respondent and in favour of the respondent-claimants. It is apparent from the aforesaid finding recorded by the learned Commissioner that the rival contentions of the parties and the evidence adduced by them have neither been considered nor discussed before arising on the aforesaid conclusion. The pleadings also does not indicate the Manju Chauhan was in agriculture business. 18. Perusal of the pleadings and evidence of the respondent claimants indicates that the deceased was a mechanic of engine and he was called by the appellant for repairing his engine. It was denied by the appellant-respondent. It is also reflected from the record that the application dated 22.07.1996 was submitted by the wife of the appellant to the Superintendent of Police, Lakhimpur Kheri alleging therein that on Saturday i.e. 15.06.1996 at about 05:30 in the evening mechanic Om Prakash S/o Sita Ram was repairing the diesel pump set of the appellant. When the engine was repaired then he was fixing the fan. In the meantime, Shyam Narain S/o Sambharu of his village came and started the engine after lifting the handle despite prohibiting from starting the engine at that time by the husband of the applicant i.e. the appellant and the mechanic Om Prakash but he did not stop and started the engine from the handle. Therefore, due to excessive speed the wheel of engine was broken by which the mechanic Om Prakash, Shri Pal of the village and the deceased Shyam Narain suffered serious injuries. Therefore, due to excessive speed the wheel of engine was broken by which the mechanic Om Prakash, Shri Pal of the village and the deceased Shyam Narain suffered serious injuries. They were got admitted in the Sadar Hospital, Lakhimpur, from where the doctors had referred Shyam Narain to Lucknow Medical College on 16.06.1996 where he died on 17.06.1996. The information of the whole matter was given by the husband of the applicant at the Police Station and now the brothers of the deceased; Ram Vilas and Shyam Vilas S/o Sambharu, on the instigation of other rivals of the village, are harassing and demanding Rs.15,000/- and threatening that failing which they will capture their land. This complaint, given by the wife of the appellant, was proved by the appellant in his evidence. The respondent claimants have also stated that after the accident they had tried to settle the matter with compromise but the appellant was not ready, therefore they had filed the claim. Therefore, the allegation in the application also seems to be correct looking to the evidence. 19. In the evidence the appellant has specifically stated that he had called mechanic Om Prakash S/o Sita Ram for repairing engine (pumpset). After repairing he was tightening the fan and told that wheel is cracked and without changing the same it would not be proper to run the engine. But the deceased Shyam Narain despite prohibiting had started the engine and the wheel of engine was broken, on account of which the mechanic Om Prakash, deceased Shyam Narain and Shri Pal of his village had suffered serious injuries and subsequently Shyam Narain had died. It has also been stated by him that after the accident, the appellant had brought the tractor trolley of Ram Gopal of his village in which he had sent them to Sadar Hospital, Lakhimpur. 20. Om Prakash S/o Sita Ram was examined as DW-2, who has stated in his evidence that he was working on the post of operator in a farm. He was called by the appellant for repairing his engine on the date of accident. He also supported the evidence given by the appellant. 21. On behalf of the respondent-claimants the respondent no.1, Guddi Devi W/o the deceased Shyam Narain was examined as PW- 1. She is not an eye witness. He was called by the appellant for repairing his engine on the date of accident. He also supported the evidence given by the appellant. 21. On behalf of the respondent-claimants the respondent no.1, Guddi Devi W/o the deceased Shyam Narain was examined as PW- 1. She is not an eye witness. Though she stated her husband knew the repairing of engine but further stated that she does not know from where he has learnt the same and her husband had not opened any shop for repairing of engine and she also does not know as to where he used to go for repairing but stated that he had gone to the place of the appellant for repairing of the engine. She has also stated that the respondent-claimants and her relatives tried to settle the matter by compromise but the appellant was not ready for it. Therefore she has filed the claim. 22. PW-2, Ram Asrey stated that at the time of accident he was at home and on information he went on the spot and found that the wheel of the engine was broken and the deceased alongwith two others had suffered injuries. But in the cross-examination he has stated that he had gone to his field and on coming back the information was given by his wife. He has also stated that he knows Om Prakash who works in farm and he is a mechanic. In regard to Shyam Narain, he stated that he does not know as to where he learnt the repairing of engine though he had seen him repairing the engine of one Bhajan Singh of Rihua. He has also stated that the deceased and he are of one caste. He is resident of Azamgarh and the deceased of Mau and he knows him. 23. PW-3, Nandu Ram has stated that at the time of accident he was at home. On receiving the information he also went at the spot and saw that the deceased and two others were injured and the appellant had taken to the deceased from his tractor trolley to Lakhimpur. In the cross-examination he has stated that he does not know the date of accident and also as to why Shyam Narain had gone. He also stated that he is of the same caste of the deceased and both are of the same district of Azamgarh. 24. In the cross-examination he has stated that he does not know the date of accident and also as to why Shyam Narain had gone. He also stated that he is of the same caste of the deceased and both are of the same district of Azamgarh. 24. In view of above, the evidence given by the witnesses of the respondent claimants is self contradictory and does not prove that the deceased Satya Narain was a mechanic of engine and gone to repair engine of the appellant. On the other hand it is evident from the evidence that Om Prakash produced as DW-2 was a mechanic who was repairing the engine of the appellant. It is also evident from the complaint given by the wife of the appellant to the Superintendent of Police on 22.06.1996 in regard to the harassment by the brothers of the deceased after the accident on 15.06.1996 and death of the deceased on 17.06.1996, which has been proved in the evidence of the appellant that the engine was repaired by the mechanic Om Prakash and not by the deceased. The mechanic Om Prakash was also examined in evidence as DW-2 and admitted that he was repairing the engine. In the cross-examination nothing could be elicit to disbelieve the evidence. But all these evidences have not been considered and discussed by the learned Commissioner before recording a perverse finding in regard to issues no.1 and 2 and holding that the deceased was in casual employment of the appellant and he died during employment therefore it is not sustainable and liable to be set-aside. 25. Similarly, in regard to issue no.5 no finding has been recorded as to whether the deceased Shyam Narain was himself responsible for the accident and the accident had occurred due to his negligence and only it has been stated that it is clear from the statement of witnesses available on the file that the accident had occurred due to bursting of engine of the appellant for which the deceased Shyam Narain was not responsible. While there is no evidence that the accident had occurred due to bursting of engine and the accident had occurred due to breaking of the wheel. It also shows that the case has been decided without application of mind at all. 26. The Hon'ble Apex Court in the case of Shri Chintaman Rao & Another Vs. While there is no evidence that the accident had occurred due to bursting of engine and the accident had occurred due to breaking of the wheel. It also shows that the case has been decided without application of mind at all. 26. The Hon'ble Apex Court in the case of Shri Chintaman Rao & Another Vs. the State of Madhya Pradesh; AIR 1958 SC 388 (Three judge Bench) has held that the concept of employment involves three ingredients: (1) Employer (2) Employee and (3) the Contract of Employment. The employer is one who employs i.e. one who engages the services of other persons. The employee is who works for other for hire. The employment is that contract of service between the employer and the employee where under an employee agrees to serve the employer subject to his control and supervision. Therefore, unless a contract of employment between the deceased and the appellant is proved he could not come within the definition of workman and unless the deceased come under the definition of workman he is not entitled for compensation under the Act of 1923. 27. In the present case the respondent-claimants have failed to prove that the deceased was a mechanic of engine and in employment of the appellant or there was any contract of employment with him. Even calling to the mechanic Om Prakash may only be an agreement for service which may not be covered under the Act. Therefore, the injuries suffered by the deceased, on account of which he died, can not be said at all to have been arose out of and in the course of employment at the time of accident. 28. The case of Valli, Minor Sengottaiyan, Minor Neelambal and Periyathayee Vs. Sidhan and Others dated 29.02.2008 of the Madras High Court, relied by the respondent-claimants in which the accident had occurred on 18.03.1996, was allowed on the ground that death arose out of and in the course of employment and the work of claimant can not be considered to be one of casual nature but the learned Deputy Commissioner had ignored the material evidence on record. The court has also observed that from the definition of word 'Workman' in section 2(1)(n) of the Act it is seen that a person other than a person whose employment is of casual nature and who is employed otherwise than for the purposes of employer's trade or business is a workman as per the definition. Similarly, the other case cited by the learned counsel for the respondents of Kerala High Court in the case of Kottayan Vs. Zacharia Kurien @ Babu decided on 22.03.2014 is also of no assistance because it is not proved in the present case that the deceased was a mechanic of engine and employed by the appellant. 29. The Hon'ble Apex Court, in the case of Smt. T.S. Shylaja Vs. Oriental Insurance Company & Another; AIR 2014 SC 893 , relied by the respondent-claimants, has held that the High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record and the High Court has neither referred to nor determined any question of law much less a substantial question of law in existence whereof was a condition precedent for the maintainability of any appeal under Section 30, which can not be disputed. 30. In view of above discussion, this court is of the considered opinion that the respondent-claimants have failed to prove that the deceased was a workman as per the definition under Section 2(1)(n) of the Act of 1923 and there was any relation of employer and employee between the appellant and the deceased. The findings recorded by the learned Commissioner are without application of mind and without considering and appreciating correctly the material and evidence on record, therefore the same are not sustainable in the eyes of law and liable to be set-aside. 31. Thus, the substantial questions of law involved in this appeal are decided in favour of the appellant and against the respondent claimants. Consequently, the judgment and award dated 22.01.2004 passed in Case No.13/5/3/3/3/1/25 under Section 22 of the Act of 1923 passed by the Workmen's Compensation Commissioner / Collector, Kheri is hereby set-aside and the application filed by the respondent-claimants is dismissed. 32. The appeal is, accordingly, allowed. No order as to costs.