Madras High Court
Branch Manager vs Selvi on 19 February, 2020
Author: R.Tharani
Bench: R.Tharani
C.M.A.(MD).No.1394 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH
COURT
DATED :19.02.2020
CORAM:
THE HONOURABLE Mrs. JUSTICE R.THARANI
C.M.A.(MD).No.1394 of 2007
and
CMP(MD)No.1 of 2007
Branch Manager,
New India Assurance Company Ltd.,
3, Main Road,
Dindigul. ... Appellant/2nd Respondent
Vs.
1.Selvi
2.Minor Chelladhurai
(The second respondent represented by mother and natural
guardian of the first respondent)
... Respondents 1 & 2/
Petitioners
3.V.Chellamuthy ... Respondent 2/
Respondent 1
PRAYER: This appeal has been filed under Section 30 of
Workmen's Compensation Act, against the award dated
22.05.2007 made in W.C.No.330 of 2005 on the file of the
Workmen's Compensation Commissioner & Deputy Commissioner
of Labour, Dindigul praying to set aside the same.
http://www.judis.nic.in
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C.M.A.(MD).No.1394 of 2007
For Appellant : Mr.D.Sivaraman
For R1 & R2 : Mr.C.K.M.Appaji
For R3 : No Appearance
JUDGMENT
The appeal has been filed against the award dated 22.05.2007 made in W.C.No.330 of 2005 on the file of the Workmen's Compensation Commissioner & Deputy Commissioner of Labour, Dindigul.
2.The appellant herein is the respondent No.2, the respondents 1 & 2 herein are the claimants and the respondent No.3 herein is the first respondent in W.C.No.330 of 2005.
3.The first and second respondents filed a petition in W.C.No.330 of 2005 under the Workmen Compensation Act, claiming a sum of Rs.7,00,000/- as compensation for the death of one Malleeswaran. The Labour Commissioner has awarded a sum of Rs.2,76,914/- as compensation. Against the award, the second respondent Insurance Company preferred this appeal. http://www.judis.nic.in 2/14 C.M.A.(MD).No.1394 of 2007
4.The brief substance of the petition in W.C.No.330 of 2005 is as follows:-
The deceased Malleswaran worked as a load man in the van bearing Reg.No.TN-57-B-9979 that belongs to the first respondent. On 06.11.2005, the deceased went to the garden of Chinnasamy, Kulanthisamy and Palanisamy at Moolakadai and loaded Tomatoes in the boxes and took them to Ootansathiram vegetable market. At about 02.00 p.m along the Kallimanthaiyam Ambilikai Road, the driver of the vehicle drove the van in rash and negligent manner and he suddenly applied the break and the load men were thrown out of the van. The deceased Malleswaran got head injuries and subsequently died in the hospital. The deceased Malleswaran died during the course of his work. He was earning a sum of Rs.150/- per day. Which is calculated as Rs.4500/- per month and the petitioner claimed a sum of Rs.7,00,000/- as compensation.
5.The brief substance of the counter of the first respondent in W.C.No.330 of 2005 is as follows:-
The deceased Malleswaran was a load man in the Tempo bearing Reg.No.TN-57-B-9979 that belongs to the first http://www.judis.nic.in 3/14 C.M.A.(MD).No.1394 of 2007 respondent. The deceased was in service on 06.11.2005 and his monthly salary was Rs.3850/- per month and he was working for a period of one year prior to the date of accident. The vehicle was periodically insured with the second respondent Insurance Company. In the said accident, the load man Makudeeswaran died. Cleaner Dhandapani and the load man Kalimuthu were injured.
6.The brief substance of the counter filed by the second respondent in W.C.No.330 of 2005 is as follows:-
The petitioner has to prove that the deceased Malleswaran was working as a load man under the first respondent and he was in service on 06.11.2005. The petitioner has to prove that the deceased Malleswaran died during the course of employment. No notice was sent to the second respondent under Section 10 of the Employee Compensation Act. There is no relationship of employer and employee between the first respondent and the deceased Malleewaran. The deceased Malleswaran travelled in the van as the owner of his vegetables. Including the driver, 9 persons travelled along with their vegetables in the first respondent's vehicle, which is contrary to the terms and conditions of Insurance Policy. There is no necessity http://www.judis.nic.in 4/14 C.M.A.(MD).No.1394 of 2007 for the second respondent to pay any compensation to the petitioners. There is no Fitness Certificate for the vehicle and the Fitness Certificate expired on 10.10.2005. The accident took place on 06.11.2005. On 11.11.2005 alone, the first respondent got the Fitness Certificate. Which is contrary to the Insurance Company Policy.
7.After considering both sides, the Tribunal awarded a sum of Rs.2,76,914/- as compensation to be paid by the second respondent. Against that order, the second respondent preferred this revision.
8.On the side of the appellant, it is stated that the Tribunal is wrong in deciding that there was employer and employee relationship between the deceased Malleswaran and the first respondent. The Commissioner did not assign any reason to discard the FIR. The claim is not maintainable for want of notice under Section 10 of Workmen Compensation Act. At the time of accident, the vehicle was operated without getting a fitness certificate. The investigation report reveals that there was no damages to the vehicle and it clearly reveals that it was the deceased, who travelled in a reckless manner. At the time of http://www.judis.nic.in 5/14 C.M.A.(MD).No.1394 of 2007 accident, 9 persons travelled in the van, which is a clear violation of policy conditions. Hence, the award given by the Tribunal is unsustainable.
9.On the side of the appellant, it is stated that some times the agriculturalists hire the vehicle and carried their vegetables to Ootansathiram Vegetable Market and those agriculturalists travelled on the top of the goods. At the time of Accident, the deceased fell down from the top of the van and some others got injuries, including in the owner of the vehicle. It is stated that there is no employer and employee relationship between the owner of the vehicle and the deceased.
10.In the FIR, it is stated that, “ .... mnj nghy; ,d;Wk; 6.11.2005 ehDk;
vq;fs;; gFjpfspy; cs;s ky;yP]t; ud;> fhspKj;J> rpd;dr;rhkp> Fhe;ijr;rhkp> gHdpr;rhkp MfpnahhpfSk; vq;fs;; epyq;fspy; tpise;j ghfw;fha;> khq;fha;> jf;fhsp fha;fwpfis K:yf;filapy; njhl;lq;fspy; Vw;wp xl;ld;rj;jpuk; bfhz;L tuntz;o K:yf;filiar; nrh;ej ; bry;yKj;J vd;gtuJ 407 ntd; o.vd;.gp-9979-y; Vw;wp xl;lsd;rj;jpuk; te;J bfhz;oUe;njhk;...” http://www.judis.nic.in 6/14 C.M.A.(MD).No.1394 of 2007
11.There is no statement about the employer and employee relationship in the FIR. Even in the statement of the van owner, it is stated that some of the agriculturalists have taken the van for hire. This reveals that the deceased did not travel as a load man. He travelled as an owner of his vegetables and that there was no employer and employee relationship between the deceased and the first respondent. The deceased is only a gratuitous passenger and the petitioner filed this petition under the Workmen Compensation Act claiming that the deceased was a load man in the van. No materials is filed to prove employer and employee relationship. The owner of the vehicle just to help the deceased family has supported the case of the petitioners. No 'A' register and pay particulars was filed to support the case of the petitioners. The burden is upon the petitioner to prove the existence of the employer and employee relationship. There was no Fitness Certificate for the vehicle at the time of accident and atleast pay and recovery order has to be passed.
12.On the side of the petitioner, it is stated that the confession made by the driver before the Criminal Court can be relied upon by the Tribunal while considering an issue of http://www.judis.nic.in 7/14 C.M.A.(MD).No.1394 of 2007 negligence and that there is no explanation for the delay in lodging the complaint.
13.A judgment of this Court published in 2011 (2) TN MAC 78 (DB) is cited wherein it is decided as follows:-
“Therefore, no evidence to hold the driver of Motorcycle as responsible for accident – Discrepancies raising strong suspicion with regard to very accident – Claimant failed to dispel doubt and suspicion by adducing acceptable evidence – Tribunal, without considering said aspects held R-2 negligent and passed award of compensation – Award, held liable to be set aside.”
14.On the side of the respondent, it is stated that even if the Fitness Certificate expired one month prior to the date of occurrence the same could be renewed. A judgment of this Court published in 2013 (2) TN MAC 515 (DB) is cited wherein it is decided as follows:-
“.... Fitness Certificate had expired just one month prior to the date of occurrence and the same could be renewed at any time. In this situation, we are of the opinion that since the vehicle was covered by insurance on the date of http://www.judis.nic.in 8/14 C.M.A.(MD).No.1394 of 2007 accident, the Insurance Company cannot deny the payment of Compensation in respect of the claim made by the third parties. So far as the third party claims are concerned, the Insurance Company can pay the Compensation amount and recover the same from the owner of the vehicle. In view of the above discussions, we are of the view that since on the of accident there is no valid Fitness Certificate, the Insurance Company can pay the Compensation and recover the same from the owner of the vehicle.”
15.On the side of the first respondent, it is stated that the deceased is only a load man and some other passengers have brought their own vegetables. The owner of the van has accepted that the deceased was his employee. When the owner himself has accepted that the deceased was his employee at the time of accident, the claimants have every right to claim compensation. Out of the 7 persons travelled only 3 persons have field claim petitions.
16.It is seen that the deceased Malleswaran travelled in the van and he met with an accident. Thereafter, he died due to grievous injuries. The claimants are the legal heirs of the deceased Malleswaran. The case of the appellant is that the http://www.judis.nic.in 9/14 C.M.A.(MD).No.1394 of 2007 deceased travelled only as a gratuitous passenger and there was no Fitness Certificate to the vehicle and that the deceased travelled on the top of the goods and that the appellant is not liable to pay compensation.
17.The contention of the claimants is that the deceased was only a workmen under the third respondent and that the third respondent in his counter has admitted the relationship of employee and employer and he has admitted that the deceased was only a load man at the time of an accident.
18.The complaint was lodged by one of the passengers in the vehicle and in the FIR, it is stated that the deceased and the others travelled in the van with their vegetables sacks. The complaint was lodged by one of the passenger and not by the deceased or by the claimant. The third respondent has admitted that the deceased Malleswaran was a load man working in his vehicle and he was in service at the time of accident. Except the FIR, no other rebuttal evidence is placed by the appellant to prove that the deceased has not travelled as a load man. http://www.judis.nic.in 10/14 C.M.A.(MD).No.1394 of 2007
19.The third respondent has admitted that at the time of accident, the deceased Malleeswaran was his employee. The evidence of P.W.1 co-relates the statement of the third respondent and the accident was during the course of employment. Since, the third respondent admitted the employment of the deceased, this Court comes to the conclusion that there is employer and employee relationship between the third respondent and the deceased.
20.On the side of the appellant, it is stated that notice under Section 10 of Workmen Compensation Act, was not served upon the appellant. It is for the third respondent to give notice to the appellant and not the claimant. The family members of the deceased can not be deprived of their right to claim compensation.
21.It is seen that the vehicle was insured with the second respondent and a premium was paid for 7 load men. The claim was made only by three of the load men and the same was accepted by R.W.2 in his evidence. There is no evidence to show that the deceased was not the employee of the 3rd respondent. The policy was in force at the time of accident and there is nothing http://www.judis.nic.in 11/14 C.M.A.(MD).No.1394 of 2007 wrong in the Tribunal fixing liability on the appellant. There is no serious objection regarding the quantum of compensation fixed by the Tribunal.
22.In the above circumstances, there is nothing sufficient enough to interfere in the award passed by the Tribunal in W.C.No.330 of 2005 on the file of the Workmen's Compensation Commissioner & Deputy Commissioner of Labour, Dindigul. Hence, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
19.02.2020 Index:Yes Internet:Yes/No Speaking Order/Non-Speaking Order dss http://www.judis.nic.in 12/14 C.M.A.(MD).No.1394 of 2007 To
1.The Workmen's Compensation Commissioner & Deputy Commissioner of Labour, Dindigul
2.V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 13/14 C.M.A.(MD).No.1394 of 2007 R.THARANI,J.
dss C.M.A.(MD).No.1394 of 2007 and CMP(MD)No.1 of 2007 19.02.2020 http://www.judis.nic.in 14/14