Telangana High Court
Bandari Sowjanya And Another vs Smt B Padma And Another on 28 November, 2024
Author: G. Radha Rani
Bench: G.Radha Rani
THE HON'BLE Dr.JUSTICE G.RADHA RANI
CIVIL MISCELLANEOUS APPEAL No.314 of 2014
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the appellants aggrieved by the order dated 21.11.2011 in W.C. No.4 of 2010F passed by the Commissioner for the Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad.
2. The appellants filed an application before the Commissioner for the Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad stating that the deceased Bandari Parvaiah was their father and he was working under the Opposite Party No.1 as driver on a tractor bearing No.AP-25-JT/R 954 and he was paid Rs.6,000/- per month as salary and batta of Rs.200/- per day. He was aged 40 years. On 22.09.2009 while the deceased was driving the tractor and was proceeding from Kondapur to Rudrur and when reached Chikkadpally Camp Kotagir at 10:30 AM, a she buffalo came across the road. The deceased applied brakes, but the tractor turned turtle and deceased fell into a ditch and the tractor fell upon him, due to which he died on the spot. They contended that the accident occurred in the course of employment of the deceased under Opposite Party No.1 and the insurance policy issued by the Opposite Party 2 No.2 was in force covering the date of accident. As such, Opposite Party Nos.1 and 2 were jointly and severally liable to pay compensation of Rs.5,00,000/- to them.
3. The Opposite Party No.1 was none other than the wife of the deceased and the mother of the applicants. She received notice and engaged a counsel, but did not choose to file the written statement - counter.
4. The Opposite Party No.2 filed a written statement calling for strict proof of the application averments. The Opposite Party No.2 contended that the Opposite Party No.1 colluded with the applicants and suppressed the material facts. The deceased was not a workman. There was no employment letter, service record, trip sheet, wage register. The name of the deceased was not registered under the Motor Transport Workers Act as driver and prayed to dismiss the claim.
5. The applicant No.2 was examined as AW.1. He also got examined an eye witness to the accident as AW.2 and got marked Exs.A1 to A10 on their behalf. The Opposite Party No.2 got examined the Senior Assistant of their company as RW.1 and got marked Exs.B1 to B2 on its behalf. 3
6. On considering the oral and documentary evidence on record, the learned Commissioner for the Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad observed that the deceased was not a workman under the employment of Opposite Party No.1 at the time of the accident. As such, the points No.2 and 3 also need no consideration and dismissed the application.
7. Aggrieved by the said dismissal of their application, the applicants preferred this appeal.
8. Heard Sri U.Sai Charan, learned counsel representing Sri T.Srujan Kumar Reddy, learned counsel on record for the appellants and Sri T. Sanjay Kumar Singh, learned Standing Counsel for the respondent No.2- Insurance Company.
9. Learned counsel for the appellants - applicants contended that the Tribunal erred in coming to the conclusion that deceased was not an employee of the respondent No.1 herein. The Tribunal erred in mis-interpreting Section 2 (n) of Workmen's Compensation Act, 1923 and failed to consider that the deceased died during the course of employment. The substantial question of law that arose for consideration of this Court in this Appeal was "Under the definition of "workman" as defined under 4 Section 2 (n) of Workmen's Compensation Act, whether there is any bar for a workman to work under the employment of his wife?". He also relied upon the judgments of the Hon'ble Apex Court in Gottumukkala Appala Narasimha Raju and others Vs. National Insurance Company Limited and Another 1 and of the High Court of Madras in M/s United India Insurance Company Limited Vs. Tirumathi Saraswathi and others in C.M.A No.1651 of 2017 and C.M.P No.8760 of 2017 dated 21.01.2021 reported in https://indiankanoon.org/doc/13674210 and of the High Court of Karnataka in Sri Panduranga Vs. Sri Somashekar 2.
10. Learned Standing Counsel for the Insurance Company on the other hand contended that the respondent No.1 made her appearance before the learned Commissioner, but failed to failed to file counter and participate in the proceedings. Ex.A6-Salary certificate was issued by the respondent No.1, but the same remained not proved as respondent No.1 failed to enter into the witness box. The relationship of employer and employee existing between the respondent No.1 - Opposite Party No.1 and the deceased was not proved by the applicants. The burden would lie upon the applicant to establish the said fact, but they failed to prove the same. The deceased was proceeding on the tractor to his fields at the time of accident, the pattedar 1 (2007) 13 SCC 446 2 MFA No.6359 of 2012 dated 05.06.2023.
5passbooks also would disclose that the agricultural land was in the name of the deceased. Thus, the deceased was not working as workman for the Opposite Party No.1 and relied upon the judgment of this Court in Prapulla Chandra Satyanarayana Vs. Smt.Prapulla Chandra Appalakonda 3.
11. On considering the contentions of the both the learned counsel, the point that arises for consideration in this appeal is:
1. Whether there is a jural relationship of employer and employee between the Opposite Party No.1 and the deceased and whether the applicants are entitled to claim compensation under the Employees Compensation Act, 1923 and whether the deceased sustained injury during the course of or out of the employment".
12. The undisputed facts are that the applicant Nos.1 and 2 are the children of the deceased Bandari Pavaiah and the Opposite Party No.1 is the wife of Bandari Parvaiah and the tractor bearing No. AP-25-JT/R 954 was registered in the name of the Opposite Party No.1 and the same was covered by a valid insurance policy for the period from 03.12.2008 to 02.12.2009 covering the date of accident on 22.09.2009. The manner of the accident was also not in dispute. It was contended that the deceased at the time of the accident was proceeding on his tractor to his fields from 3 2011 (5) ALT 640 6 Kondapur to Rudrur and on the way a she buffalo came across the road, he applied brake and the tractor turned turtle and deceased fell into a ditch and the tractor fell upon him due to which he died on the spot.
13. The contention of the learned Standing Counsel for the respondent No.2 - Insurance Company was that the deceased was not an employee of the Opposite Party No.1 and there was no employer and employee relationship between them, as such, they were not liable to pay compensation to the claimants under the Employees Compensation Act, 1923.
14. The contention of the learned counsel for the appellants - applicants was that the respondent No.1 being the wife of the deceased is not precluded from being the employer, as per the Employees Compensation Act for granting compensation and relied upon the judgment of the High Court of Karnataka in Sri Panduranga Vs. Sri Shomashekar (2 supra), wherein it was held that:
"9. The point to be considered in the claim petition filed before the Commissioner of Workmen Compensation are, whether there is employer-employee relationship, whether the workmen sustained injuries during the course of employment and whether there is connection between the injuries sustained and accident. There may be instance that father is employer and son is working under him as an 7 employee in any unit or establishment. This cannot negate the legal relationship of employer- employee under the Employee's Compensation Act. Likewise, elder brother is an employer engaged his younger brother as an employee in his shop/establishment that does not mean that just because they are brothers, there is no relationship of employer and employee. Likewise, in the present case just because the claimant is husband of the second respondent that does not mean that just because the relationship of husband and wife, they are not employer- employee.
10. Admittedly, the first respondent is a previous owner of the Lorry and in the said Lorry under the employer of first respondent, the claimant was working as a driver in the Lorry. Subsequently, respondent No.2 had purchased the said Lorry and work of the claimant as driver continued after selling the Lorry to the second respondent. Therefore, just because the wife has purchased the Lorry and in the said Lorry the claimant being continued as driver, which does not mean that there is no employer-employee relationship. The family relationship is different and the relation of employer- employee under the Employee's Compensation Act is different. Just because the family relatives are in the unit/establishment as an employer- employee, because of their family relationship that does not mean that there is no relationship of employer- employee. In this regard, in a catena of decisions of this Court, it is held that mere blood relationship or family relationship does not mean that there is no relationship of employer-employee under the Employee's Compensation Act. Therefore, the present case is covered by the judgments in the case of Sandeep B.N Vs. New India 8 Assurance Co. Ltd (2020 ILR Karnataka 2602) and Divisional Manager Vs. Smt. Pramilabai (2016 LabLR 543).
11. The Supreme Court in the similar facts held that the husband is workmen and wife is employer, it is observed that technically it can be possible that the husband is employee under the wife. But when dispute arises that the said relationship is continued is a absurd situation. But in the present case, there is no dispute between the claimant and the second respondent. Even though there was dispute between employer-employee relationship is a absurd situation, but just because the husband and wife are living in the same roof, under the same address and the husband is working as a driver in the truck and the wife is the owner of the said truck, that is not a mere relationship of employer-employee, but for the purpose of Employee's Compensation Act, there exists relationship of employer-
employee also, for the purpose of granting compensation under the Act. As per Section 3 of Employee's Compensation Act, three ingredients are to be considered as discussed above. The said three ingredients are compared in the present case. Therefore, in this regard, the dismissal of the claim petition by the learned Commissioner is not correct. Therefore, the order passed by the learned Commissioner is liable to be set aside. Accordingly, set aside."
9
15. The High Court of Madras also by considering the judgment of the High Court of Karnataka in Oriental insurance Company Limited Vs. Hanumant and Another 4, held that:
"(8).2. The contention of the insurer that there exists no relationship of employer (driver) happens to be the son of the owner of the jeep, respondent No. 2, therefore, there cannot be a relationship of employer and employee is an untenable argument. It is not uncommon amongst the business family to engage their own kith and kin on employment for doing the business or commercial activity.
Merely because in such a situation no wages are paid in cash is also not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind computable in terms of money for the services rendered. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship. Therefore, the fact that the respondent No. 1 and respondent No. 2 are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under Workmen's Compensation Act".
9. This Court has no other opinion with reference to the principles dealt with by the Karnataka High Court. The husband and wife may be an employer-employee in certain cases. However, the said factum is to be established with some principles and evidence. Mere statement that the husband aged about 62 years is working 4 2006 ACJ 251 10 as a Lorry Cleaner with his wife is insufficient to arrive a conclusion that the employer-employee relationship exist between the husband and the wife.
10. Undoubtedly, a Welfare Legislation and its provisions are to be interpreted liberally and constructively. While interpreting the Welfare Legislation, the Courts are expected to be cautious mainly and the ground whether mandatory requirements are established beyond any pale of doubt. If the mandatory requirements are not established, then the Courts are not expected to show any misplaced sympathy and grant compensation in favour of the claimant. Thus, a fine distinction is to be drawn in a case where there is no evidence and cases where evidences are available. If the employer-employee relationship exist between the spouses, then it is necessary that some acceptable evidence is to be produced for grant of compensation.
16. The above observations are also recognized by the Hon'ble Apex Court in the case of Gottumukkala Appala Narasimha Raju and others Vs. National Insurance Company Limited and Another (1 Supra) but however, held that documentary proof is required for the purpose of accepting the employer and employee relationship between the spouses.
17. The Hon'ble Apex Court held that:
23. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into 11 consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide.
24. No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also not borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under 1923 Act certainly would not lie. Only because Section 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of 1988 Act to the provisions of 1923 Act save and except to the extent noticed hereinbefore."
18. Thus, though the High Court of Madras and Karnataka and the Hon'ble Apex Court held that technically it was possible that a husband could be employed by his wife, but had raised a caution that care should be taken to see that there was documentary proof to establish the relationship as employer and employee between the spouses and that there should be 12 some acceptable evidence to be produced for grant of compensation. In the present case also there was no acceptable evidence to prove that there was an employer and employee relationship between the opposite party No.1 and the deceased. There was no employment letter, service record or wage register filed to establish that the deceased was working as a workman under the respondent No.1.
19. The applicant No.2 examined as AW.1. Though he stated that his father was under the employment of his mother i.e. opposite party No.1 and was paid Rs.6,000/- per month as salary and Rs.200/- per day as batta, admitted in his cross examination that the Opposite Party No.1 was his mother and pattedar passbook filed belonged to his father and as on the date of accident, his father went to the fields to unload the fertilizer. AW.2 who was examined on behalf of the applicants also stated in his cross - examination that he was not aware whether the deceased was working under Opposite Party No.1. Thus, their oral evidence is not sufficient to establish the relationship of employer and employee between the Opposite party No.1 and the deceased. The Opposite Party No.1 failed to enter into the witness box to prove the contents of Ex.A6, salary certificate, to prove the employment of the deceased under her and to face the cross examination by the Opposite Party No.2 - Insurance Company. In the 13 absence of any documentary proof filed by the applicants to show that the deceased was working as an employee under the Opposite Party No.1 and the evidence on the other hand would disclose that he was proceeding on the tractor to the fields which was in his name and not on any work entrusted by the Opposite Party No.1, this Court agrees with the observation of the learned Commissioner for the Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad that the deceased was not a workman under the employment of Opposite Party No.1 at the time of the accident.
20. This Court in Prapulla Chandra Satyanarayana Vs. Smt.Prapulla Chandra Appalakonda (2 Supra) also considered a similar aspect and observed that:
"Since the injured applicant is none other than the husband of O.P-1, he will not fall under the definition of workman and therefore, he is not entitled to claim any compensation from the O.P-2 Insurance Company. The tribunal below while discussing the evidence on record came to the positive finding that the applicant will not come under the definition of workman which in my view is not erroneous thereby sustainable and therefore, I see no grounds to differ with the finding of the tribunal below."
21. Though, technically it was possible that the husband may be employed by the wife, but in the absence of any documentary proof to 14 show that the deceased was a workman under his wife - the opposite party No.1, the claim of the appellants - applicants does not appear to be bonafide.
22. In the result, the Civil Miscellaneous Appeal is dismissed confirming the orders of the Commissioner for the Workmen's Compensation and Deputy Commissioner of Labour, Nizamabad in W.C No.4 of 2010F dated 21.11.2011. No costs.
Pending miscellaneous applications, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 28.11.2024 Dsv