FIRST APPEAL NO. 7 OF 2017

5th February 2020

Petitioner Counsel: Shri R.D. Bhuibhar
Respondent Counsel: Shri R.M. Sharma Shri V.N. Morande
Act Name: Employee’s Compensation Act, 1923 Motor Vehicles Act, 1988

Cases Cited :

JUDGEMENT

1. Appeal was admitted on the following substantial question of law :
Whether the learned Commissioner under the Employee’s Compensation Act, 1923 is right to award compensation to the respondent Nos.1 to 3 in the absence of any proof regarding the employment of the deceased with the respondent No.5 at the time when the alleged accident took place ?

2. Heard Shri R.D. Bhuibhar, learned Counsel for the appellant/Insurance Company. He has submitted that respondent Nos.1 to 4 have not produced on record any document to show that deceased Mangesh Pardhi was working as a driver with respondent No.5. The ‘employee-employer’ relationship is not proved and, therefore, it is not covered under the Employee’s Compensation Act, 1923. As the ‘employee-employer’ relationship is not proved, the owner and Insurance Company of the vehicle are not liable to pay any amount of compensation.

3. Shri R.M. Sharma, learned Counsel for respondent Nos.1 to 4 has submitted that on the day of incident deceased Mangesh was driving the JCB machine belonging to respondent No.5. The first information report was registered on the information given by one Bhagwan Vithoba Raut. As per the contents of first information report, deceased Mangesh was working as a driver with respondent No.5. He was the eyewitness of the incident. He was also working on the said JCB machine. Material documents i.e. first information report, notices issued by respondent Nos.1 to 4 are proved on record. Notices issued to the appellant and respondent No.5 were served, but those notices were not replied. Learned Counsel has submitted that the documents filed on record clearly show that deceased was working as driver with respondent No.5. The offending vehicle i.e. JCB machine was insured by the appellant and, therefore, the appellant and respondent No.5 are liable to pay the amount of compensation. The Commissioner of Employee’s Compensation Act, Chandrapur rightly granted amount of compensation by passing the award. The appeal is devoid of merit and it be dismissed accordingly.

4. The JCB machine was driven by the deceased Mangesh on the day of incident. This fact is not disputed by respondent No.5. Respondent No.5 has admitted in his cross-examination that notices were sent by respondent Nos.1 to 4 claiming compensation. There is no dispute that those notices were not replied by the appellant and respondent No.5. In the said notices, respondent Nos.1 to 4 contended that deceased was working as a driver with respondent No.5. The silence on the part of the appellant and respondent No.5 not replying the notice amounts to admission. Therefore, the appellant and respondent No.5 cannot say that deceased was not in the employment on the day of incident.

5. As per the first information report Exhibit U-12 on record shows that this first information report was lodged by Bhagwan Vithoba Raut. Bhagwan Vithoba Raut was also working on the said JCB machine which was driven by deceased Mangesh. As per the contents of the first information report, deceased Mangesh was driving machine. When they reached at Nanori-Kahali Road, a wild boars came infront of the JCB machine, driver Mukesh applied immediate brake and, therefore, machine was turned turtle. The deceased pressed under the machine and died. The contents of report further show that deceased was under the employment of respondent No.5.

6. These documents are proved before the trial Court. The documents filed by claimants are not denied by respondent No.5. In his evidence, respondent No.5 has stated that deceased was not in his employment, but in the cross-examination, the admission given by him shows that the deceased was in his employment. As per his submission, one driver Sudhir Sahare was driving his vehicle, but his further admission shows that on the day of incident Sudhir Sahare was not driving the JCB. If Sudhir Sahare was in the employment of respondent No.5 to drive JCB machine then there was no any hurdle to examine Sudhir Sahare before the Labour Court.

7. The material documents i.e. notices sent by respondent Nos.1 to 4 to the appellant and respondent No.5 are not replied by them. First information report and other police papers show that on the day of incident deceased was in the employment of respondent No.5.

8. Strict proof is not required to prove the ‘employee-employer’ relationship as contended by the appellant. The theory of ‘beyond reasonable doubt’ is not applicable in this case. It is a case like motor accident claim. As per the Motor Vehicles Act, it is a summary proceedings and it is to be decided expeditiously. In a summary proceedings the notes of evidence is required. The detail evidence is not required. The Court has to see the material documents and on that basis Court can come to the conclusion about the material issue.

9. In the present case, notices sent by respondent Nos.1 to 4 were not replied by the appellant and respondent No.5. The police documents i.e. first information report, spot panchanama, etc. proved on record clearly show that on the day of incident deceased was driving JCB machine. The co-employee lodged report in the police station stating that deceased was in the employment of respondent No.5. He was driving the said JCB machine. He applied immediate brake to save the wild boar and, therefore, JCB machine was turned turtle. All the contents of first information report and spot panchanama clearly show that the deceased was in the employment of respondent No.5. Hence, the substantial question of law framed by this Court is answered accordingly. Appeal is devoid of merit and dismissed with no order as to costs. Respondent Nos.1 to 3 are permitted to withdraw the amount of compensation alongwith accrued interest, if any, deposited before the Commissioner under the Employee’s Compensation Act, Chandrapur.