a)North-East Karnataka Road Transport Corporation v. Sujatha reported in
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C.M.A.No.2755 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.07.2024CORAM:THE HON'BLE MR. JUSTICE ABDUL QUDDHOSEC.M.A. No.2755 of 2021 and C.M.P. No.15735 of 2021M/s.United India Insurance Co. Ltd.,No.74-A, Paramathi Road,Namakkal District... Appellantvs.1.C.Ragupathy2.K.Chinnusamy.. RespondentsPrayer: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, 1923 against the award and decree dated 28.12.2020 made in E.C. No.234 of 2017 on the file of the Commissioner, Workmen's Compensation Tribunal, DCL, Coonoor.For Appellant : Mr.S.ArunkumarFor first respondent: Mr.Ma.P.ThangavelFor second respondent: No appearance JUDGMENTThis appeal has been filed by the appellant/Insurance Company, challenging its liability to pay compensation to the first respondent/ 1/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021petitioner on the ground that the first respondent/petitioner has not proved that there was an employer-employee relationship between the second respondent and the first respondent/petitioner. 2.It is contended by the appellant/insurance company that the claim of the first respondent/petitioner before the Commissioner is a collusive action as according to them, the second respondent, who is the father of the first respondent/petitioner, is not the first respondent's/ petitioner's employer. The Commissioner has framed the following issues:1)kDjhuh; uFgjp vd;gth;. Kjy; vjph;kDjhuUf;Fr; brhe;jkhd thfdj;jpy; Xl;Leuhfg; gzpg[hpe;J te;jnghJ 19/02/2017k; njjpad;W gzpapd;nghJ Vw;gl;l gzpapil tpgj;jpy; fhakile;Js;shuh> Kjy; kDjhuUf;Fk; kDjhuUf;Fk; ,ilna Kjyhsp-bjhHpyhsp vd;w cwt[Kiw cs;sjh>2)1923k; tUlj;jpa gzpahsh; ,Hg;gPl;Lr; rl;lg;go kDjhuUf;F tH';fg;glntz;oa ,Hg;gPl;Lj; bjhif vt;tst[> ,Hg;gPL ahuhy; tH';fg;glntz;Lk;>3.Learned counsel for the appellant/Insurance Company would 2/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021submit that by total non-application of mind and without any basis, despite the fact that F.I.R. has been registered only against the two wheeler and not against the lorry, insured with the appellant/Insurance Company, in which the first respondent/petitioner was a driver, the Commissioner has passed the impugned order directing the appellant/ Insurance Company to pay compensation. Learned counsel for the appellant/Insurance Company would contend that the first respondent/ petitioner has not filed any documentary evidence before the Commissioner to prove that he was an employee under the second respondent, the owner of the lorry, insured with the appellant/Insurance Company. He would also submit that the claim of the first respondent/ petitioner before the Commissioner is a collusive action. He would submit that instead of proceeding against the two wheeler, which was actually involved in the accident, the first respondent/petitioner has made a false claim against the appellant/Insurance Company before the Commissioner and the Commissioner has erroneously passed an order directing the appellant/Insurance Company to pay compensation. 4.On the other hand, the learned counsel for the first respondent/ petitioner would rely upon the following decisions of the Hon'ble 3/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021Supreme Court:a)North-East Karnataka Road Transport Corporation vs. Sujatha reported in 2018 (2) TN MAC 577 (SC); b)T.S.Shylaja vs. Oriental Insurance Company and another reported in 2014 (2) SCC 587;5.Relying upon the aforesaid decisions, the learned counsel for the first respondent/petitioner would submit that since only based on the evidence available on record, the Commissioner has rendered a factual finding that there is an employer-employee relationship between the second respondent and the first respondent/petitioner, the said finding cannot be disturbed by this Court. 6.Insofar as the first decision, i.e., North-East Karnataka Road Transport Corporation vs. Sujatha reported in 2018 (2) TN MAC 577 (SC), relied upon by the learned counsel for the first respondent/ petitioner is concerned, the employer was examined as a witness and the appellant/Transport Corporation had an opportunity to cross examine the employer with regard to the claim made by the claimant that he was an employee under the employer. Even though in the said decision, the 4/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021employer was the brother of the claimant, who was examined as a witness, the appellant/Transport Corporation had cross examined the alleged employer, but, in the instant case, excepting for the fact that the second respondent was arrayed as a party respondent in the Claim Petition filed by the first respondent/petitioner, no opportunity was granted to the appellant/Insurance Company to cross examine the second respondent with regard to the submission made in the counter that his son, namely, the first respondent/petitioner was his employee. 7.Insofar as the second decision, i.e., T.S.Shylaja vs. Oriental Insurance Company and another reported in 2014 (2) SCC 587, relied upon by the learned counsel for the first respondent/petitioner is concerned, the same is also not applicable to the facts of the instant case. In the said decision, there was an evidence placed on record by the claimant to prove that there was an employer-employee relationship. Only under those circumstances, the Hon'ble Supreme Court held that being factual findings based on evidence, the High Court ought not to have entertained the appeal as there was no substantial question of law involved in the appeal filed before the High Court. 5/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 20218.In the case on hand, excepting for the deposition of the first respondent/petitioner that the second respondent is his employer, the first respondent/petitioner has not produced any documentary evidence to prove that the second respondent is his employer. Though he has filed the Family Ration Cards of both the first respondent's/petitioner's family as well as the second respondent's family, which have been marked as exhibits, the same will not suffice for the purpose of proving employer- employee relationship. The second respondent has not been examined as a witness before the Commissioner to enable the appellant/Insurance Company to cross examine with regard to the veracity of the second respondent's statement that the first respondent/petitioner, who is his son, is his employee. The Commissioner, without any evidence, has come to the conclusion that there was an employer-employee relationship between the second respondent and the first respondent/petitioner. 9.Being a welfare legislation, in order to give one more opportunity for the first respondent/petitioner to adduce additional oral and documentary evidence to substantiate his claim that there was an employer-employee relationship between the second respondent and the first respondent/petitioner and to prove that the accident happened during 6/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021the course of the second respondent's employment, this Court deems it fit to set aside the impugned award and remand the matter back to the very same Commissioner for fresh consideration, on merits and in accordance with law, after affording an opportunity for the appellant/ Insurance Company and the respondents to adduce additional oral and documentary evidence. 10.Accordingly, the impugned order of the Commissioner dated 28.12.2020 passed in E.C. No.234 of 2017 is hereby set aside and this appeal is disposed of by remanding the matter back to the very same Commissioner for fresh consideration, on merits and in accordance with law. The Commissioner shall grant an opportunity for the appellant/ Insurance Company and the respondents to adduce additional oral and documentary evidence in support of their respective contentions. The 7/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021ABDUL QUDDHOSE, J. vgaCommissioner shall pass an order within a period of six months from the date of receipt of a copy of this judgment. No costs. Consequently, connected petition is closed.02.07.2024vga To1.The Commissioner, Workmen's Compensation Tribunal, DCL, Coonoor.2.The Section Officer, V.R. Section, High Court, Madras.C.M.A. No.2755 of 2021 and C.M.P. No.15735 of 20218/8
C.M.A.No.2755 of 2021IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.07.2024CORAM:THE HON'BLE MR. JUSTICE ABDUL QUDDHOSEC.M.A. No.2755 of 2021 and C.M.P. No.15735 of 2021M/s.United India Insurance Co. Ltd.,No.74-A, Paramathi Road,Namakkal District... Appellantvs.1.C.Ragupathy2.K.Chinnusamy.. RespondentsPrayer: Civil Miscellaneous Appeal filed under Section 30 of the Workmen's Compensation Act, 1923 against the award and decree dated 28.12.2020 made in E.C. No.234 of 2017 on the file of the Commissioner, Workmen's Compensation Tribunal, DCL, Coonoor.For Appellant : Mr.S.ArunkumarFor first respondent: Mr.Ma.P.ThangavelFor second respondent: No appearance JUDGMENTThis appeal has been filed by the appellant/Insurance Company, challenging its liability to pay compensation to the first respondent/ 1/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021petitioner on the ground that the first respondent/petitioner has not proved that there was an employer-employee relationship between the second respondent and the first respondent/petitioner. 2.It is contended by the appellant/insurance company that the claim of the first respondent/petitioner before the Commissioner is a collusive action as according to them, the second respondent, who is the father of the first respondent/petitioner, is not the first respondent's/ petitioner's employer. The Commissioner has framed the following issues:1)kDjhuh; uFgjp vd;gth;. Kjy; vjph;kDjhuUf;Fr; brhe;jkhd thfdj;jpy; Xl;Leuhfg; gzpg[hpe;J te;jnghJ 19/02/2017k; njjpad;W gzpapd;nghJ Vw;gl;l gzpapil tpgj;jpy; fhakile;Js;shuh> Kjy; kDjhuUf;Fk; kDjhuUf;Fk; ,ilna Kjyhsp-bjhHpyhsp vd;w cwt[Kiw cs;sjh>2)1923k; tUlj;jpa gzpahsh; ,Hg;gPl;Lr; rl;lg;go kDjhuUf;F tH';fg;glntz;oa ,Hg;gPl;Lj; bjhif vt;tst[> ,Hg;gPL ahuhy; tH';fg;glntz;Lk;>3.Learned counsel for the appellant/Insurance Company would 2/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021submit that by total non-application of mind and without any basis, despite the fact that F.I.R. has been registered only against the two wheeler and not against the lorry, insured with the appellant/Insurance Company, in which the first respondent/petitioner was a driver, the Commissioner has passed the impugned order directing the appellant/ Insurance Company to pay compensation. Learned counsel for the appellant/Insurance Company would contend that the first respondent/ petitioner has not filed any documentary evidence before the Commissioner to prove that he was an employee under the second respondent, the owner of the lorry, insured with the appellant/Insurance Company. He would also submit that the claim of the first respondent/ petitioner before the Commissioner is a collusive action. He would submit that instead of proceeding against the two wheeler, which was actually involved in the accident, the first respondent/petitioner has made a false claim against the appellant/Insurance Company before the Commissioner and the Commissioner has erroneously passed an order directing the appellant/Insurance Company to pay compensation. 4.On the other hand, the learned counsel for the first respondent/ petitioner would rely upon the following decisions of the Hon'ble 3/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021Supreme Court:a)North-East Karnataka Road Transport Corporation vs. Sujatha reported in 2018 (2) TN MAC 577 (SC); b)T.S.Shylaja vs. Oriental Insurance Company and another reported in 2014 (2) SCC 587;5.Relying upon the aforesaid decisions, the learned counsel for the first respondent/petitioner would submit that since only based on the evidence available on record, the Commissioner has rendered a factual finding that there is an employer-employee relationship between the second respondent and the first respondent/petitioner, the said finding cannot be disturbed by this Court. 6.Insofar as the first decision, i.e., North-East Karnataka Road Transport Corporation vs. Sujatha reported in 2018 (2) TN MAC 577 (SC), relied upon by the learned counsel for the first respondent/ petitioner is concerned, the employer was examined as a witness and the appellant/Transport Corporation had an opportunity to cross examine the employer with regard to the claim made by the claimant that he was an employee under the employer. Even though in the said decision, the 4/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021employer was the brother of the claimant, who was examined as a witness, the appellant/Transport Corporation had cross examined the alleged employer, but, in the instant case, excepting for the fact that the second respondent was arrayed as a party respondent in the Claim Petition filed by the first respondent/petitioner, no opportunity was granted to the appellant/Insurance Company to cross examine the second respondent with regard to the submission made in the counter that his son, namely, the first respondent/petitioner was his employee. 7.Insofar as the second decision, i.e., T.S.Shylaja vs. Oriental Insurance Company and another reported in 2014 (2) SCC 587, relied upon by the learned counsel for the first respondent/petitioner is concerned, the same is also not applicable to the facts of the instant case. In the said decision, there was an evidence placed on record by the claimant to prove that there was an employer-employee relationship. Only under those circumstances, the Hon'ble Supreme Court held that being factual findings based on evidence, the High Court ought not to have entertained the appeal as there was no substantial question of law involved in the appeal filed before the High Court. 5/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 20218.In the case on hand, excepting for the deposition of the first respondent/petitioner that the second respondent is his employer, the first respondent/petitioner has not produced any documentary evidence to prove that the second respondent is his employer. Though he has filed the Family Ration Cards of both the first respondent's/petitioner's family as well as the second respondent's family, which have been marked as exhibits, the same will not suffice for the purpose of proving employer- employee relationship. The second respondent has not been examined as a witness before the Commissioner to enable the appellant/Insurance Company to cross examine with regard to the veracity of the second respondent's statement that the first respondent/petitioner, who is his son, is his employee. The Commissioner, without any evidence, has come to the conclusion that there was an employer-employee relationship between the second respondent and the first respondent/petitioner. 9.Being a welfare legislation, in order to give one more opportunity for the first respondent/petitioner to adduce additional oral and documentary evidence to substantiate his claim that there was an employer-employee relationship between the second respondent and the first respondent/petitioner and to prove that the accident happened during 6/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021the course of the second respondent's employment, this Court deems it fit to set aside the impugned award and remand the matter back to the very same Commissioner for fresh consideration, on merits and in accordance with law, after affording an opportunity for the appellant/ Insurance Company and the respondents to adduce additional oral and documentary evidence. 10.Accordingly, the impugned order of the Commissioner dated 28.12.2020 passed in E.C. No.234 of 2017 is hereby set aside and this appeal is disposed of by remanding the matter back to the very same Commissioner for fresh consideration, on merits and in accordance with law. The Commissioner shall grant an opportunity for the appellant/ Insurance Company and the respondents to adduce additional oral and documentary evidence in support of their respective contentions. The 7/8 https://www.mhc.tn.gov.in/judis C.M.A.No.2755 of 2021ABDUL QUDDHOSE, J. vgaCommissioner shall pass an order within a period of six months from the date of receipt of a copy of this judgment. No costs. Consequently, connected petition is closed.02.07.2024vga To1.The Commissioner, Workmen's Compensation Tribunal, DCL, Coonoor.2.The Section Officer, V.R. Section, High Court, Madras.C.M.A. No.2755 of 2021 and C.M.P. No.15735 of 20218/8