High Court

Legal Reasoning

1 fa1497.24 judgmentIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADFIRST APPEAL NO. 1497 OF 2024 WITHCIVIL APPLICATION NO. 5183 OF 2024IN FIRST APPEAL NO. 1497 OF 2024 The New India Assurance Co. Ltd.,Through it’s Branch Manager,2nd Floor, Mahesh Auto, Adalat Road,Aurangabad.Through its Authorized Officialand Divisional Manager, Legal HubAdalat Road, Aurangabad...Appellant (Orig. Resp. No.2) VERSUS1. Kamaluddin s/o. Ismail Dhande, (Dead) Age : 42 years, Occ. Labourer, R/o. Nehru Chowk, Paithan, Tal. Paithan, Dist. Aurangabad.2. Nasim w/o. Kamluddin Dhande, Age : 38 years, occ. Household, R/o. As above. 3. Rajesh s/o. Bhimrao Ekade, Age : Major, Occ. Business, R/o. Janseva Saw Mill, Tilak Road, Ahmednagar- 414 001. … Respondents. (Res. no.1 & 2 orig. claimants & Res. no. 3 Orig. resp. no. 1)…..………Mr. U.S.Usmanpurkar : Advocate for the appellantMr. A.S.Usmanpurkar : Advocate for Respondent No.1Mr. Shaikh Kayyum Najir : Advocate for Respondent No.2Mr. V.P. Golewar : Advocate for Respondent No.3…………. CORAM : S. G. CHAPALGAONKAR, J. Dated : 06.02.2025 2 fa1497.24 judgmentJUDGMENT :- 1.Appellant insurer takes an exception to judgment and awarddated 29.09.2023 passed the Ld. Commissioner of EmployeesCompensation and Judge, Labour Court-2, Aurangabad in ApplicationW.C.A. (C) No.09 of 2022. (The parties are referred to as per their originalstatus.)2.Respondent Nos. 1 & 2 herein instituted proceeding underSection 22 of the Employees Compensation Act, 1923 before theCommissioner of Employees Compensation and judge Labour Court,Aurangabad raising claim for compensation contending that deceasedWasim Kamaluddin Dhande was employee on truck bearing registrationNo. MH-16-AE-7911, owned by Original respondent No. 1, which wasinsured with respondent No. 2. On 14.11.2010, while he was on duty,said truck met with an accident in Malshet Ghat. Deceased got pressedunder truck and died on the spot. The incident was reported to PoliceStation. Consequently Crime No. 57 of 2010 was registered with TokawadeGramin (Rural) Police Station. According to Claimants, deceased wasgetting salary of Rs. 4,000/- p.m. He was aged about 22 years.Respondent No. 1 being owner and respondent No. 2 being insurer arejointly and severally liable to pay compensation. Claimants weredependent upon deceased.3.Respondent No. 1 owner of vehicle filed his Written Statementand admitted that he used to hire services of deceased Vasim as driver asand when work was available with him, but denied that deceased was hispermanent employee. He states that accident occurred due to negligenceon the part of deceased, who was driver of vehicle, at the time of accident.4.Respondent No. 2 insurer denied its liability contending thatthere was no employee-employer relationship between deceased and 3 fa1497.24 judgmentrespondent No. 1. It is further pleaded that claim was filed after 11 years,hence deserves to be dismissed.5.Tribunal after evaluation of pleadings and evidence allowedclaim and directed respondent Nos.1 & 2 to pay compensation of Rs.4,23,580/- along with interest @ 12% a.m. from the date of filing ofproceeding i.e. from 24.07.2017 till actual realization of amount. Inaddition, respondent No. 1/Employer is saddled with liability to paypenalty of Rs. 2,11,790/-.6.Aggrieved, insurer filed present appeal assailing award passedby the Commissioner for Employees Compensation. Mr. U.S.Usmanpurkar, learned Advocate appearing for appellant InsuranceCompany vehemently submits that proceeding seeking compensation hasbeen instituted after 11 years, however, the Commissioner withoutplausible explanation condoned inordinate delay. Similarly exceptadmission of respondent No. 1, there is no material to indicate that therewas employee-employer relation between deceased and respondent No. 1or death of deceased is arising out of said employment. According to Mr.Usmanpurkar, there is difference in the name of deceased as per Post-mortem report and the name pleaded in the Claim Petition. He wouldtherefore, urge that there are many substantial questions of law whichrequire consideration in this appeal.7.Mr. Shaikh Kayyum Nazir, learned Advocate appearing forrespondent however justifies the award.8.Having considered submissions advanced following points arehighlighted on behalf of appellant. Firstly, there is objection as toemployee-employer relationship between deceased and respondent No. 1.Secondly, difference of name as compared with postmortem report, which 4 fa1497.24 judgmentraises suspicion and thirdly, claim has been entertained after inordinatedelay. The issue of limitation would go to the root of the matter, therefore,the submissions on this count are considered at the first instance. It canbe observed that Claimants had initially filed Misc. WCA No.30 of 2017,thereby, praying for condonation of delay caused in filing application forcompensation. The Commissioner decided said application vide orderdated 05.02.2022 and condoned delay. Pertinently, order passed on Misc.WCA No. 30 of 2017 dated 05.02.2022 was never challenged and attainedfinality. As a result of condonation of delay, present WCA (C) ApplicationNo.9 of 2022 has been registered. In this background now it would not beopen for appellant insurer to raise ground of limitation in this appeal,which has been filed against final award.9.Second contention raised on behalf of appellant is that thereis nothing to prove employee-employer relationship between deceased andthe owner of vehicle. Pertinently, respondent No. 1 owner of vehiclecaused his appearance and filed Written Statement, wherein, hecategorically admits that on the date of accident, deceased was employedas driver on the insured vehicle bearing registration No. MH-16-AE-7911and suffered accidental death. He admits that although deceased was notpermanent employee, his services were hired as and when required.Aforesaid statement in written statement filed by respondent No. 1 clearlysuggest that deceased was employed on insured truck and his deathoccurred during the course of and arising out of the employment withrespondent No. 1. As per evidence, deceased was on driver’s seat at thetime of death, which suggests that he was employee on truck at the timeof accident. Insurer could not bring any evidence on record to discreditstatement of employer or Claimants on the point of employee-employerrelationship. Admission of respondent No. 1 which is not controverted byrespondent No. 2 Insurance Company is sufficient to hold that deceasedwas employee on truck of respondent No. 1 at the time of accident. 5 fa1497.24 judgment10.Last submission advanced on behalf of insurer is that there isdifference in the name of deceased and post-mortem report Exhibit No. U-19. Perusal of post-mortem report would show that name of deceased ismentioned as Vasim Kamal Dhande instead of Vasim KamaluddinDhande. As such there is bare difference of suffix against name of father.Appellant cannot make any capital out of this minor discrepancy. Policepapers relating to accident, driving license of deceased and evidence laidby Claimants is sufficient to establish identity of deceased.11.Learned Commissioner has rightly considered relevant legaland factual aspects and passed award. No infirmity is discernible inapproach of Commissioner. No substantial question of law arises forconsideration in this appeal. Hence, First Appeal stands dismissed.12.In view of dismissal of First Appeal, Civil Applications, if any,shall stand disposed off.13.Amount deposited by appellant insurer with Commissioner ofEmployees Compensation be released in favour Claimants along withaccrued interest thereon, if any. ( S. G. CHAPALGAONKAR ) JUDGEmahajansb/