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Judgment
A.N. Venugopala Gowda
This appeal is against an order dated 27.05.2010 passed by the Workmen''s Compensation Commissioner (''CWC'' for short), Davanagere District, in case No. CR-165/2007, allowing the claim petition filed by respondents 1 to 3 herein, whereby and where under the appellant was directed to pay/deposit the compensation amount with interest. For convenience, the parties would be referred to with reference to their rank in the claim petition. Briefly stated, the facts leading to the filing of the appeal are as under:
Petitioners instituted a claim petition contending that, Somesh, the husband of 1st petitioner and father of petitioners 2 & 3, was a loader and encoder in a tractor-trailer bearing registration No. KA-17-TA-5259 & 5260 under the employment of 4th respondent and died, when Somesh and other coolies were proceeding in a tractor-trailer an accident having occurred owing to negligence on the part of driver of said vehicles. It was contended that, deceased Somesh was the only bread earning member in the family and due to his untimely death, the family has been thrown into street.
The 1st respondent, owner of the vehicles in question appeared through his advocate and filed statement, admitting as true, the statements made in the claim petition and stated that, the vehicles having been duly insured and the insurance certificate being valid as on the date of occurrence of accident, the insurance company has to satisfy the claim.
The appellant, which was the 2nd respondent in the claim petition, filed its written statement and opposed the claim petition, interalia contending that, there was no jural relationship of employer and employee between the deceased and the insured and that, there is breach of terms of insurance policy. It was pointed out that, the deceased was the son of insured and hence, no liability can be fastened on it to pay the compensation amount.
Issues were raised by CWC. The 1st petitioner deposed, through whom Exs.A-1 to A-8 were marked. For the insurance company, its authorised representative deposed, through whom Exs.R-2(l) to R-2(7) were marked. The CWC held that, there existed jural relationship of employee & employer between the deceased and the owner of offending vehicles and taking into consideration the age and wages, the loss of dependency was determined and the appellant, which had issued the insurance policy, was directed to pay the compensation amount.
Sri A.N. Krishna Swamy, learned counsel appearing for the appellant, contended that, the policy issued by the appellant was a farmer''s Package Policy in respect of tractor-trailer and no additional premium was collected to cover the risk of loaders/unloaders and the appellant having disputed the relationship of employer & employee and also the liability to pay compensation in respect of risk occasioned to employees being carried in a tractor-trailer, the CWC is not justified in allowing the claim petition and in fastening the liability on the appellant to satisfy the award. Learned counsel submits that, the CWC has failed and neglected to notice the fraud and misrepresentation committed by the claimants in wangling an award, alleging that, Somesh was an employee working under his father. Learned counsel submits that, there being no credible evidence with regard to employment of the deceased by the insured to work in the vehicle and even otherwise the evidence of PW-1 being to the effect that the deceased was sitting on the tractor when the accident occurred, the appreciation of evidence is perverse and the fastening of liability on the appellant is illegal. Learned counsel submitted that, the CWC has not applied and followed the ratio of law in the case of GOTTUMUKKALA APPALA NARASIMHA RAJU & OTHERS VS. NATIONAL INSURANCE CO. LTD., - 2007 (2) TAC 385 (SC). Learned counsel further submitted that, the deceased being an unauthorised passenger in the vehicles in question, the fastening of liability on the appellant is illegal.
Sri V.B. Siddaramaiah, learned counsel appearing for respondent 1 to 3/claimants, on the other hand contended that, there is no bar for 4th respondent in employing the deceased merely because they were father and son respectively. Learned counsel submitted that, the evidence placed on record has been correctly appreciated by the CWC and the decision on which Sri A.N. Krishna Swamy placed reliance has no application to the case on hand and in the circumstances, the appeal being devoid of merit may be dismissed.
Sri E.S. Indresh, learned counsel appearing for the 4th respondent, submitted that, the deceased was employed in the tractor-trailer as a loader/unloader by the owner of tractor-trailer and sustained fatal injuries in an accident which arose out of and during the course of employment and the vehicles being duly insured, the appellant is liable to pay the compensation amount.
In view of the rival contentions and the record, which I have perused, the questions for determination are:
Whether the finding recorded by CWC that the petitioners/claimants have proved jural relationship of employer and employee between the insured and the deceased is perverse?
Whether the CWC is justified in fastening the liability on the appellant to satisfy the award?
The 1st petitioner deposed as PW-1 According to her, her husband was working under her father-in-law, as a coolie in the tractor-trailer. Exs.P-1 to P-6 are the police records in respect of the accident in question. Ex.A-7 is the I.M.V Report. In hone of the said records, there is any mention of the deceased being employed as a coolie under the owner of offending vehicles. PW-l has admitted that, she has not produced any record in proof of the employment under her father-in-law, the 1st respondent. She has admitted that, deceased traveled by sitting on the tractor, which means, he must have sat necessarily on the mudguard since the vehicle was being driven by its driver. Indisputediy the deceased was not the driver in the vehicle. In tractor, only the driver can sit and none else can sit and travel i.e., on the mudguards. PW-1 has admitted that, the deceased was sitting in the tractor. Even the police records show that, the deceased was sitting on the tractor. In the circumstances, there is breach of terms of insurance policy by the insured.
The insured, by filing a statement has admitted the statements made in the claim petition. However, he has not chosen to examine himself and provide opportunity to the insurance company to cross-examine him. In the circumstances, mere statement filed by the insured cannot be the basis to hold that there existed relationship of employer.& employee between himself and his son, the deceased Somesh. The insured ought to have got himself examined and enabled the insurance company to cross-examine him, to establish the truth. No records pertaining to the employment of the deceased by the insured was produced. Even the driver of tractor-trailer was not examined. There is no dispute with regard to relationship of deceased and insured, as son and father respectively. To maintain a claim petition under the Workmen''s Compensation Act, 1923 (for short the Act''), it is incumbent on the part of the claimants to establish the jural relationship of workman and employer. A petition under the provisions of the Act cannot be allowed in the absence of jural relationship between the injured/deceased and the employer, being established.
The insured has joined hands with the petitioners for laying a claim against the insurer/appellant. The petitioners and the insured have joined hands, taking into consideration the vehicle being insured, to put forth a claim on the appellant and to obtain an award. There being no proof of employment and no independent witnesses Having been examined, the evidence of PW-1 being self-serving and not credible, the CWC has erred in holding that there existed jural relationship of employee and employer between the deceased and the owner of tractor-trailer and in fastening the liability on the appellant. The case is squarely covered by the decision in the case of GOTTUMUKKALA APPALA NARASIMHA RAJU (supra). Before the CWC, though reliance was placed on the said decision, the same has neither been considered nor applied by the CWC. The impugned order/award is perverse. In the circumstances of the case, the CWC was not justified in fastening the liability on the appellant to pay the compensation amount.
In the result, the impugned order/award to the extent of fastening the liability on the appellant cannot be sustained. The appeal is allowed.
The appellant be refunded the amount deposited by it. However, if- is open to the petitioners to realist the award amount by proceeding against the 4th respondent herein/owner of tractor-trailer, if they so desire. No costs.