High Court
Facts
22-FA-412-191 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 412 OF 20191. Suvarna @ Nandabai Pandit KendreAge : 37 years, Occu.: Household2.Ayodhya Pandit Kendre,Age: 17 years, Occu.: Education3.Navnath Pandit Kendre,Age: 15 years, Occu.: Education4.Vaijnath Pandit KendreAge: 13 years, Occu.: Education(Applicant Nos.2 to 4 being Minor U/g. Of their real Mother and naturalguardian i.e. Applicant No.1)5.Jijabai Vithal KendreAge: 65 years, Occu.: Household6.Vithal Kondiba Kendre,Age: 75 years, Occu.: Nil,All R/o. Mansingh Wadi,Tq. Kandhar, Dist. Nanded.… Appellants(Orig. Claimants) VERSUS1.Vithal Madhavrao BhosleAge: Major, Occu.: Business,R/o Thogaon, Tq. & Dist. Nanded2.The New India Assurance Co. Ltd.Through it;s Manager,Lahoti Complex, Vazirabad, Nanded.… Respondents......Mr. B.R. Kedar, Advocate for ApplicantsMr. V.H. Solanke, Advocate h/f Mr. B.N. Gadegaonkar, Advocatefor Respondent No.1Mr. M.R. Deshmukh, Advocate for Respondent No.2...... [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 19th AUGUST, 2024 S.P. Rane 1 of 7 22-FA-412-192 ORAL JUDGMENT :1.Heard. 2.Admit. Taken up for final hearing with the consent ofthe parties. 3.Being aggrieved by the impugned judgment passedby learned Commissioner for E.C. Act and Judge, LabourCourt, Nanded in E.C.F.A. No.46 of 2013, claimants havepreferred this first appeal under section 30 of the EmployeesCompensation Act. 4.Pandit Vithal Kendre, husband of claimant no.1 andfather of claimant nos.2 to 4 and son of claimant nos.5 and 6was working as driver along with the first respondent/owner oftruck No. MH-26/7961. The first respondent/owner was payinghim monthly salary of Rs.8,000/- Accident occurred on20.01.2013, while Pandit Kendre was discharging his duty asdriver, in front of Chitadevi Mandir, Koka Shivar, District-Bhandara. Pandit expired in the accident. Claimants thereforefiled E.C.F.A. No.46 of 2013 claiming compensation ofRs.10,00,000/-.5.The first respondent/owner by filing say pleaded thatPandit Kendre was employed as a driver in emergency. Thedriver engaged by him did not obtain prior permission of theS.P. Rane 2 of 7 22-FA-412-193 first respondent/owner to engage the deceased as driver onthe truck. The first respondent/owner had no knowledge thatdeceased was engaged as driver on the truck. He has notdirectly engaged deceased as a driver. He, therefore, deniedhis liability to pay compensation.6.Respondent No.2/insurance company opposed theclaim by filing written statement and denied the contentionsraised by claimants. 7.Learned Commissioner, after recording evidencerejected the claim holding that claimants have failed to provethat deceased Pandit Kendre was in the employment of thefirst respondent. Claimants have utterly failed to prove thatthe truck has been owned by the first respondent and the firstrespondent has denied the relation of employer and employeeand payment of monthly wages to deceased in his writtenstatement. The first respondent has not identified twowitnesses i.e. Sudhakar and Kashinath, who were alleged tobe cleaner on the said truck. Both these witnesses are closerelatives of deceased and whole proceeding itself shows thatpetition has been filed with collusion of police machinery andthe first respondent to grab the amount of compensation fromthe insurance company. It is also observed by the learnedS.P. Rane 3 of 7 22-FA-412-194 Commissioner that deceased was not having valid drivinglicence to drive transport vehicle. 8.Heard learned advocate for claimants, learnedadvocate for the owner and learned advocate for insurancecompany. Perused the record. 9.Neither the accident is disputed nor the death ofPandit Kendre in the said accident. FIR of the accident inquestion, which took place on 20.01.2013 is lodged on23.01.2013 by another truck driver Ganpat Sambhaji Gaikwad,who was proceeding in his truck towards sugar factory afterloading sugarcane. He has stated that truck No. MH-26/7961,which was loaded with sugarcane and which was being drivenby Pandit Kendre, turned turtle on the slop of the road andPandit Kendre expired by coming under the truck. Inquestpanchanama and post-mortem report supports the accidentaldeath of Pandit Kendre.10.It appears from the evidence brought on recordbefore the learned Commissioner that the truck No. MH-26/7961 was registered in the name of Mr. PravinkumarBapurao Naik and not in the name of the first respondent,Vithal Madhavrao Bhosle. The Commissioner therefore was ofthe view that the first respondent was not the registeredS.P. Rane 4 of 7 22-FA-412-195 owner of the truck and therefore his evidence that deceasedwas under his employment is of no help to claimants. LearnedCommissioner has proceeded to observe that there is nodocument to show that the first respondent is the registeredowner of the truck. But, it is further observed that theinsurance policy of the truck involved in the accident is in thename of the first respondent. Learned Commissioner thereforeobserved two material documents i.e. RC book and insurancepolicy are contrary to each other.11.Be that as it may, fact remains that insurance policystands in the name of the first respondent and he has deposedbefore the learned Commissioner that he was owner of thetruck and deceased was in his employment. In view of thesettled legal position that considering welfare provision ofpayment of compensation, if there are two interpretationsavailable, the one supporting the case of claimants is to berelied upon. The learned Commissioner has lost sight of thissettled legal position and has wrongly rejected the claimapplication filed by claimants. 12.Finding recorded by learned Commissioner that atthe time of accident deceased was not holding valid licence fordriving transport vehicle is also not proper in the peculiarS.P. Rane 5 of 7
Legal Reasoning
22-FA-412-196 facts of present case. Admittedly, the deceased was havingvalid licence to drive heavy transport vehicle since 27.07.1992till 09.07.1997, which was renewed from 14.05.2008 to13.05.2011. So this is not a case where the deceased at nopoint of time had licence to drive transport vehicle.13.Another ground on which the application is rejectedis that prior notice under section 10 of Workmen’sCompensation Act is not brought on record by the claimants.Claimants had placed copies of R.P.A.D. receipts of the noticeforwarded to the owner before learned Commissioner,however, claimants failed to place on record the office copy ofthe said notice forwarded by them. Claimants have placed acopy of notice forwarded by them to owner in the compilationof first appeal.It is submitted that inadvertently office copy of thenotice under section 10 was remained to be placed before thelearned Commissioner and claimants may be given anopportunity to place the same on record. 14.It is well settled that learned Commissioner is notbound by strict rules of pleadings and evidence. Prima facie, itappears that claimants have placed on record, sufficientmaterial to show that deceased was under the employment ofS.P. Rane 6 of 7 22-FA-412-197 the first respondent. But the claimants ought to have arrayedthe registered owner of the truck as party respondent in theclaim application, the said opportunity needs to be given toclaimants to prove their claim on merits. 15.For the aforestated reasons, Impugned judgmentpassed by learned Commissioner for E.C. Act and JudgeLabour Court, Nanded in E.C.F.A. No.46 of 2016 is herebyquashed and set aside.16.E.C.F.A. No.46 of 2013 is remanded back to the Courtof learned Commissioner Commissioner for E.C. Act and JudgeLabour Court, Nanded with liberty to claimants to addregistered owner as party respondent and with further libertyto the parties to lead further evidence on record, if any.17.The learned Commissioner is directed to decide theapplication as expeditiously as possible in any case within oneyear from the date of receipt of writ of this Court.18.Needless to state that observations made in thisorder shall not influence the learned Commissioner whiledeciding the application on merit.19.First Appeal is disposed of. [NITIN B. SURYAWANSHI ] JUDGE S.P. Rane 7 of 7