Bombay High Court
Mohd. Anis Mohd. Elyea Khan vs Iltiza & Co. And Anr. on 2 September, 1999
Equivalent citations: 2001ACJ2057, [2000(85)FLR79], (2000)ILLJ1304BOM
Author: R.J. Kochar
Bench: R.J. Kochar
ORDER Pandya, J.
1. This matter arises out of a Judgment delivered on September 30, 1997 in Workmen's Compensation Application No. 128/C-22 of 1993 before the Commissioner for Workmen's Compensation and Judge, Second Labour Court at Thane.
2. The Appellant who received injury in course of his working on vehicle bearing No. MMK-4120 had approached with a claim under the said Act before the Trial Court.
3. While denying the contract of employment and, therefore, any relationship with the claimant as a workman, the Respondent No. 1 Company mentioned that for the employment of cleaner on the truck to help the driver, the driver was paid a lumpsum by voucher and out of that amount driver was to select somebody to work as a cleaner with him on the truck.
4. This aspect of the matter should have been given importance as also result of the implication should have been carried to its logical conclusion. The said authority given to the driver to select his own cleaner as his companion on the truck for a trip and that having been done under the authority given by the owner of the truck, the action of the driver, should be viewed as an agent of the owner of the truck.
5. Once this aspect of the agency is understood, obviously, the driver is authorised agent of owner to employ a cleaner. The relationship was established for the duration of the contract of service as a cleaner. This would therefore clearly make the cleaner who has been employed only for that trip for the duration thereof an employee of the owner. The cleaner that is the applicant has clearly stated that he was so employed by the driver of the vehicle. The voucher that has been produced before the trial Court shows that the payment of the cleaner has been made by the driver.
6. Obviously, therefore, in the aforesaid background the witnesses who have been examined on behalf of the company will have no personal knowledge at all and the driver of the truck only will have personal knowledge of the same. The driver being out of the employment of the company - respondent No. 1, it was the duty of the company to call him and examine to disclose the case of the applicant. The Commissioner on the contrary has taken a view that it was for the cleaner to examine the driver. This approach is totally incorrect.
7. When the owner of the vehicle and its witnesses, for want of any personal knowledge, have repeated the contentions raised in the written statement obviously will not help the company.
8. While Civil litigations are being decided, the applicant having personal knowledge has deposed to the entire nature of transaction, which is also borne out from the record produced by the company, and as such get support, the same has to be accepted in face of the deposition of a witness of the company who has ho personal knowledge.
9. Obviously, therefore, since the approach of the trial Court which has been found incorrect by us, we will have to allow the appeal and the order will have to be set aside.
10. So far as the company is concerned, in its written statement it does not deny the contract of insurance. The Respondent No. 1 company having taken contract of insurance from the Respondent No. 2 company, it is therefore, under the terms of policy, bound to indemnify the respondent No. 1.
11. In view of the aforesaid approach of the trial Court the important aspect of the compensation and the amount, the claimant is entitled to, has not been gone into by the trial Court at this late a stage it is of no (sic) use to remand. We have found sufficient material on record based on which amount can be quantified.
12. The claimant in his deposition page 30 of the paper Book has claimed that he was being paid Rs. 1000/- and Rs. 20/- as Bhatta Charges. Cross examination of the witness in only on the point whether there is any documentary evidence to support his claim. The other witness of the appellant at page 33 has also said that he had worked with the opponent No. 1 company as a cleaner and he was getting Rs. 1000/- as his monthly salary. He was not examined at all by the opponent No. 1 company.
13. The witness of the respondent No. 1 company i.e. Atikur Abdul Hanal page 35 onwards has clearly admitted during cross examination at page 37 that cleaners are kept as per the choice of the drivers.
14. Going by the Voucher's produced before the trial Court at page 133 of the trial Court record the fare of a trip to Jalgaon with Driver was Rs. 1500/- as trip charges. Out of the said amount some portion has to go to cleaner as per the aforesaid practice of the company allowing the driver to have a cleaner of his choice. That amount also goes much above the amount claimed by the petitioner by way of wages. The distance between Mumbai and Jalgaon is more than 400 kms. The one way trip would be completed in a day. For two days therefore if a driver is getting an amount of Rs. 750/- per day it is safe to enter that atleast he would be parting with Rs. 50/- to the cleaner. This will clearly make average monthly salary would come to Rs. 1300/-. This is more than the salary claimed by the Petitioner before the trial Court. The entire claim is therefore required to be allowed on the basis of his salary of Rs. 1300/-.
15. The medical papers and certificate of disability taken on record by the trial Court is at Exh. 3. It has not been challenged at all by either of the Respondents before the Trial Court. The claim of 40% disability has therefore remained unchallenged.
16. The net result is therefore by the working out of the quantum, the basic figure of salary comes to Rs. 1300/-p.m. and as per 40% disability has to be awarded in accordance with Schedule to the Act.
17. The Registrar is directed to transmit the record forthwith. The claim is allowed with costs of appeal as well as the trial Court.
18. The decree be drawn up by the trial Court within eight weeks and after drawing up of the decree the respondents shall deposit the amount. On the amount being deposited the trial Court shall pass the order on the Workmen's Compensation Application.