Smt. Phoolbai and Another vs M/s Gopal Grain Trading Store and Another

N.K. Mody, J.

Being aggrieved by the order dated 25.9.2002 passed by Commissioner for Workmen Compensation (Labour Court), Indore in Case No. 17/01 under Workmen Compensation Act, whereby the application filed by the appellants who are legal representatives of deceased Baloo @ Balram has been dismissed, the present appeal has been filed.

Short facts of the case are that Respondent No. 1 is the owner of the truck No. MP 10-A 3543 which was insured with Respondent No. 2 at the relevant time. On 7.8.2000 accident took place by the said truck. At that time, truck was being driven by Baloo @ Balram. After his death case for compensation was filed under the provisions of Workmen Compensation Act. The claim was opposed by Respondent No. 2. Learned court below framed the issues, recorded the evidence and dismissed the petition against which present appeal has been filed. Vide order dated 255.2003, appeal was admitted for final hearing on following substantial question of law :-

Whether the impugned award passed by Commissioner for Workmen Compensation is perverse and contrary to law, wherein, it has been held that deceased Baloo @ Balram did not die on account of an accident arising out of and in the course of his employment?

Learned counsel for the appellant submits that apart from oral statement appellant has filed the FIR (Exh. -P-1), Postmortem report (Exh. -P-2), Final report (Exh. -P-4), Memo of seizure of truck (Exh. -P-5) and Panchanama (Exh. -P-6). It is submitted that from the policy Exh-D-1 it is evident that the offending vehicle was owned by Respondent No. 1 and was insured with Respondent No. 2. From the document Exh. -P-1 to Exh. -P-6 it is evident that at the relevant time deceased Baloo @ Balram was driving the truck. Learned counsel further submits that the case proceeded ex-parte against respondent No. 1 before the learned court below and respondent No. 1 did not come forward with a case that deceased Baloo @ Balram was not driving the truck of Respondent No. 1. In the circumstances, there was no justification for holding that deceased Baloo @ Balram was not under the employment of Respondent No. 1.

Shri Vijay B., counsel for Respondent No. 2 submits that order passed by the learned Court below is just and proper. It is submitted that no licence of deceased has been filed. It is also not proved that deceased was in the employment of Respondent No. 1. In the circumstances, learned court below has rightly rejected the claim petition.

From perusal of the record it is evident that there is ample evidence on record to prove the fact that at the relevant time offending truck was driven by Baloo @ Balram. In the circumstances the evidence adduced by the appellant was sufficient to prove the fact that deceased was in the employment of Respondent No. 1. Further respondent No. 1. has not come with the case that deceased was not in his employment. Since it is established from the record that deceased Balram was driving the offending vehicle at the time when accident took place, therefore, burden was on the respondents to prove that at the relevant time, deceased was not in the employment of respondent No. 1 and in what circumstances he was driving the vehicle owned by respondent No. 1.

In the circumstances the findings given by the court below for dismissing the claim is perverse, contrary to the law and is not sustainable. Hence, the appeal stands allowed. Findings of learned court below is hereby set-aside with a direction that case be remanded to learned court below to decide the case on merits after affording opportunity to the parties to adduce further evidence. Parties are directed to remain present before the Court below on 17th of October, 2005.

No order as to costs.