Andhra HC (Pre-Telangana)
P. Narasimha Reddy And Ors. vs K. Ramachander And Anr. on 27 April, 2004
Equivalent citations: 2005ACJ1090, 2004(4)ALD15, 2004(4)ALT511
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This CMA is filed under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act'), against the order dated 20-5-2001, passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I (hereinafter referred to as 'the Commissioner'), in W.C.No. 82 of 1999, dismissing the claim of the appellants.
2. W.C. No. 82 of 1999 was presented before the Commissioner alleging that the son of Appellants 1 and 2, and brother of Appellant No. 3 by name, Mahipal Reddy, was employed as Driver of a seven-seater auto bearing No. AP-23-T-5214, belonging to the 1st respondent. It was alleged that an accident occurred on account of the collision of the said vehicle with another unknown vehicle at 3:00 a.m., on 29-9-1999, when it was proceeding from Patancheru to Ghanpur, and that the said Mahipal Reddy died in the accident. A sum of Rs. 2,50,000/-was claimed as compensation, by stating that the deceased was aged 20 years at the time of accident and that he was being paid the salary of Rs. 2,000/- per month. The vehicle was insured with the 2nd respondent.
3. The 1st respondent filed counter-affidavit admitting that the deceased was employed under him, and that he died in the accident that took place on 29-9-1999. It is also stated that since the vehicle is insured with the 2nd respondent, he cannot be made liable to pay any compensation. The 2nd respondent filed counter-affidavit contending that the deceased was not working as driver, when the accident took place. Rest of the contents of the claim petition were also denied.
4. On behalf of the appellants, the 1st appellant was examined as PW-1 and the 1st respondent was examined as RW-1. The driving licence and other related documents were filed. The Commissioner rejected the claim of the appellants on taking the view that there did not exist any relationship of employer and employee between the deceased-driver and the 1st respondent.
5. The learned Counsel for the appellants submits that the best person to speak about the existence of relationship of employer and employee between the deceased and the 1st respondent, was the 1st respondent himself, and in his evidence, as RW-1, the 1st respondent has categorically stated that the deceased was under his employment. He submits that RW-1 has extensively spoken to the occurrence of the accident and the steps taken thereafter, and in that view of the matter, the Commissioner was not at all justified in drawing an inference that such a relationship did not exist.
6. The learned Counsel for the 2nd respondent submits that during the course of cross-examination of PW-1 and RW-1, on behalf of the 2nd respondent, it was elicited that except the oral assertion, no record, as such, existed to prove that the deceased was employed with the 1st respondent.
7. The appellants have specifically pleaded in their claim petition that the deceased was employed with the 1st respondent as driver on a seven-seater auto, and that he died in an accident that occurred on 29-9-1999. The salary that was being paid to the deceased, and his age were stated. The 1st respondent admitted these assertions in his counter-affidavit. It is only the 2nd respondent who has disputed everything that pleaded by the appellants. On the basis of the pleadings before it, the Commissioner framed four issues, viz.,
(a) Whether the deceased is workman within the meaning of the Act.
(b) Whether the accident arose out of, or in the course of employment.
(c) Whether the compensation claimed is due and correct; and
(d) Whether the opposite parties are liable to pay the compensation.
8. PW-1 is the 1st appellant herein, viz., the father of the deceased. He clearly spoke to the factum of his son having been employed as a driver with the 1st respondent; the salary being paid to him; the occurrence of accident and the age of the deceased, by the time he died. He was not cross-examined by the 1st respondent. The 2nd respondent made several suggestions to dispute the existence of relationship of employer and employee between the deceased and 1st respondent. The only material information that they could elicit from him is that there was no document to show that his son was drawing a sum of Rs. 2,000/- per month, as wages. 2nd respondent has gone even to the extent of suggesting that R-1 is not the owner of the vehicle at all, forgetting the fact that they are the insurers of R-1. A suggestion was made that there did not exist any relationship of employer and employee.
9. The 1st respondent was examined as RW-1 He stated that he employed the deceased as his driver and that he used to pay Rs. 2,000/-, towards wages. He stated that the accident took place on 29-9-1999 at 3:00 a.m., and soon after he received the phone call from the Police Station, Patancheru, he rushed to the spot by 4:00 a.m. He too was extensively cross-examined on behalf of the 2nd respondent. Except the suggestion that there did not exist anything in writing to show that the deceased was employed with him, no useful information was elicited through him. None was examined on behalf of the 2nd respondent.
10. So far as the 1st issue is concerned, the Commissioner recorded a finding that the deceased is a workman within the meaning of the Act. All other issues were answered against the appellants, on the ground that the relationship of employer and employee between the deceased and the 1st respondent was not established. It is rather curious that the Commissioner, who was supposed to be specialized in Labour Laws, did not care to refer to the relevant provisions of the Act.
11. The only basis for the Commissioner to have arrived at the conclusion that there did not exist any relationship of employer and employee between the deceased and 1st respondent, was the absence of any written order of employment. The Commissioner refused to accept the version or admission of the 1st respondent in his counter-affidavit and evidence that the deceased was employed by him, for wages of Rs. 2,000/- per month. No finding was recorded that there exists any collusion between the appellants and the 1st respondent. As observed earlier, the Commissioner recorded a finding that the deceased was a workman and held a valid licence. The fact that he died in the accident on 29-9-1999, while driving the vehicle, was the matter of record, as is evident from the FIR and other related documents. The cynical approach adopted by the Commissioner is evident from the following observation:
Further, the Vehicle No. AP-23-T-5214 was described as the Auto in the application, whereas it was stated as a seven-seater Auto by PW-1, in his evidence, pointing out yet another discrepancy, and finally the occupation of the deceased was stated as driver in the application, while PW-1 stated that deceased-Mahipal Reddy worked as Cleaner-cum-Driver under R-1, The CWC finds that, therefore, it is not clear whether the deceased was driving O.P1's Auto on 29-9-1999 at the material time of accident, and hence, the petitioners are not entitled for any compensation under the WC Act."
12. There cannot be any clear instance of lopsided implementation the provisions of the beneficial and social legislation such as the Workmen's Compensation Act, than this. The Commissioner went on further observing that the charge-sheet in the relevant criminal case was not filed; that the other particulars of the vehicle and driving licence were not mentioned in the application.
13. The Parliament has enacted the Act to protect the interests of the workmen in the event of death or bodily injury suffered during the course of employment. It is not necessary that there should exist a written order of employment to apply or attract the provisions of the Act, for grant of compensation. The definitions of 'employer' under Section 2(e) and 'workman' under Section 2(n), disclose the intention of the Parliament, to avoid all possibilities of denial of the benefit under the Act on technical grounds. Clause-(ii) of Section 2(n) puts at rest, any doubt as to the requirement of existence of an order of employment in writing. It provides for the existence of relationship of employer and employee:
"Whether the contract of employment was made before or after passing of the Act, and whether such contract is express or implied, oral or in writing."
14. The necessity to deal with the question as to whether there existed such a relationship, would arise only when the employer denies it. When the employer, viz., the 1st respondent has categorically pleaded that the deceased was his employee, there was no necessity or basis for the Commissioner to have framed an issue, much less to have entertained any doubt. The 2nd respondent alone disputed not only the relationship of the employer and employee, but even the occurrence of accident. Except having the luxury of putting some irrelevant and obnoxious questions in the cross-examination to PW-1 and RW-1, the 2nd respondent has not chosen to lead any evidence to buttress its contention. In that view of the matter, the plea taken by the 2nd respondent, in its counter-affidavit, remained unproved, and without any basis. Instead of ignoring the unproved version of the 2nd respondent, the Commissioner has taken it as a gospel truth and denied the entire benefit to the appellants under the Act. By her acts and omissions in this regard, the Commissioner belied the hope of the Parliament that the rights of the workman and their dependants, under the Act, would be better protected by entrusting the adjudication to the departmental authorities. There are certain observations in the order, which are really startling. For example, the Commissioner observed:
"The CWC finds that during the course of examination of PW-1 he clearly admitted that no documents regarding employment of his deceased son were filed..." Therefore, in the absence of clinching evidence regarding the employer and employee relationship between the deceased and R-1, the CWC finds that the fact of accident taking place during deceased-workman's employment under R-1, has not been established."
15. This Court does not find any basis for recording such findings by the Commissioner, when the employer himself admitted in clear terms that employment of the deceased with him, the occurrence of accident and the death of the driver. But for the fact that the quantum of salary and the age of the deceased need to be verified, this Court would have straightaway allowed the appeal and awarded compensation to the appellants. Since no findings were recorded as to the age of the deceased and the quantum of wages, the matter needs to be remanded to the Commissioner, for fresh consideration on this aspect.
16. Hence, the CMA is allowed, and it is held that the deceased-Mahipal Reddy was employed as driver with the 1st respondent, when he died in the accident, that occurred on 29-9-1999. The matter is remanded to the Commissioner for disposal, confined to the questions of the age of the deceased, the wages that were being paid to him, and for awarding of appropriate compensation to the appellants in terms of the Act. The Commissioner shall dispose of the matter within two months from the date of receipt of a copy of the order and record. No costs.