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Judgment
K. Govindarajulu
The respondent No. 2 in WCA.706/2002 on the file of the Commissioner for Workmen''s Compensation, Sub-division No. 2, Bellary is the appellant. The parties will be referred according to their ranking before the Commissioner for convenience.
The facts necessary for the consideration of the appeal are as under:
It is the case of the claimant that he was working as a driver in the Lorry bearing registration No. KA34/A 4559 belonging to respondent No. 2 - G.T.Sunkappa. While working as a driver on 7.1.2002, the driver of the lorry has driven the lorry rashly and negligently, it resulted in accident. So, seeks for compensation.
The Insurance Company has denied the accident, called upon the claimant to prove the relationship of the employer and employee and contend that the claim is exaggerated, plead for dismissal of the claim application. The owner of the vehicle has denied the case of the claimant but admitted that earlier to the accident, claimant was working with the first respondent and also contend that after the accident, the claimant is working with Jambunatha Lorry Service, So, the owner is not liable to pay the compensation, so seek for dismissal of the claim application.
The learned Commissioner has recorded the evidence, believed the case of the claimant that he met with the accident, while he was moving in the lorry driven by other lorry driver, fixed the compensation at Rs. 95,371/- .
The learned Advocate Shri G.N.Raichur on behalf of the Insurance Company contend that here is a case of denial of relationship of the employer and employee. So, the primary burden is upon the claimant to prove the same. In addition to it, the owner of the lorry has denied the claimant being the second driver in the lorry. This aspect is not properly considered by the learned Commissioner so it has resulted in grave injustice in directing the Insurance Company :o pay the compensation. The learned Advocate places reliance on the following rulings:
i. Mamtaj BI Bapusab Nadaf and Others Vs. United India Insurance Company and Others Civil Appeal No. 7428/2010 decided on 07.09.2010.
ii. Palraj Vs. The Divisional Controller, Nekrtc In Civil Appeal No. 7430/2010 decided on 07.09.2010.
iii. United India Insurance Company Vs. Chidananda In MFA. Nos. 7000 to 7002/2002 decided on 04.07.2003.
iv. KSRTC Vs. Sri Kiran and Others MFA. No. 3838/1996 decided on 11.10.2000
v. The Oriental Insurance Company Limited Vs. Mr. Shafi @ Shafiulla MFA. No. 9338/2005 decided on 27.08.2010
On the other hand, the learned Advocate Shri Laxmikanth Reddy supports the finding, contend that the claimant was working with the respondent No. 1 -owner of the vehicle is almost admitted. In the objections, it is contended that the claimant is working with Jambunatha Lorry Service after the accident and not with the owner of the lorry. This crucial admission is suffice to prove the employer and employee relationship. So, supports the reasoning of the learned Commissioner.
Carefully considered the material submission. The employment of the claimant being disputed by the Insurance Company, the substantial question that arises for consideration is as under:
Whether the claimant has proved that he has sustained injury while serving with the owner of the vehicle bearing registration No. KA34/A 4559 belonging to the respondent No. 1?
The case of the claimant as the one narrated supra is that on 7.1.2002 at 8 a.m., he was moving in the lorry of the first respondent as a second driver, then the other driver has driven the vehicle rashly and negligently, it resulted in accident. So, the claimant claims that he was moving in the lorry as an employee of the respondent No. 1. The same is denied by the learned Advocate for the Insurance Company. The summary of the objections filed by the owner extracted by the Commissioner would read as follows:
This statement in the objections would probablize the employment of the claimant with the respondent No. 1 prior to the accident, moving in the vehicle when the accident occurred as the one submitted by the learned Advocate for the claimant. To rebut this crucial case of pleading, the other driver who is said to be driving the vehicle is a material witness. The Insurance Company which intended to absolve itself from the liability ought to have examined the said witness. No such effort to place the material evidence is attempted by the Insurance Company in the facts of the case. In the light of the above material probability of the employment pleaded by the claimant, the case laws relied by the learned Advocate for the Insurance Company is taken up for consideration.
Learned Advocate places reliance on Mamtaj BI Bapusab Nadaf and Others Vs. United India Insurance Company and Others (Civil Appeal No. 7428/2010 decided on 07.09.2010). The Hon''ble Apex Court was considering the claim of the legal representatives of Babu Sab Nadaf who contended that Babu Sab Nadaf has sustained injuries and then succumbed to the injuries while he was unloading the maize from a tractor trailor. The ease was considered by the Apex Court in the backdrop of the death of workman. The contention of the Insurance Company that the Company is not liable is accepted. The said contention of the Insurance Company was in pursuance of explanation in Section 147(1) of the Motor Vehicles Act. The case placed before the Court is a case of injury. So, the facts are distinguishable. So this ease law relied by the learned Advocate for the Insurance Company is not helpful for the Insurance Company.
The learned Advocate places reliance on Palraj Vs. The Divisional Controller. Nekrtc (In Civil Appeal No. 7430/2010 decided on 07.09.2010). In this case, the Hon''ble Apex Court was considering as to how the disability of a KSRTC Bus driver who was the claimant in the said case has to be assessed. The Hon''ble Apex Court has accepted the finding on percentage of disability, dismissed the appeal preferred by the claimant. So, this ruling is not applicable to the present factual situation to answer the employer and employee relationship urged by the learned Advocate Shri G.N. Raichur.
The learned Advocate places reliance on United India Insurance Company Vs. Chidananda (In MFA.Nos.7000 to 7002/2002 decided on 04.07.2003). In this case, this Court was considering the quantum of disability. It is again not a case on the aspect of proof of the employer and employee relationship. So, this case law is not helpful for the appellant - Insurance Company.
Further, the learned Advocate places reliance on KSRTC Vs. Sri Kiran and Others (MFA.No. 3838/1996 decided on 11.10.2000) wherein, this Court was considering the position of a traveller in a car along with his friends and it is not a case in connection with the employer and employee relationship, therefore, this case law is not helpful for the appellant - Insurance Company in this case.
Further, learned Advocate Shri Raichur places reliance on The Oriental Insurance Company Limited Vs. MR. Shafi @ Shafiulla (MFA.No. 9338/2005 decided on 27.08.2010) wherein, this Court has found that the workman-claimant in the said case has climbed the coconut tree to pick the coconuts and so, the Court held that the climbing up the coconut tree and picking the coconuts is not in the course of employment of driver so, held that the Company is not liable. In view of the Court finding that the case law relied by the learned Advocate Shri Raichur being not helpful for the Insurance Company, the Court has to find whether the material placed by the claimant being not rebutted whether the Insurance Company can be absolved from paying the compensation. The answer is No. Therefore, the Court holds that the Insurance Company has failed to prove the claimant - respondent No. 1 had no relationship of employer and employee. The substantial question raised is answered against the Insurance Company The appeal is dismissed. The amount in deposit be transferred to the Commissioner for payment.