Punjab-Haryana High Court
The New India Assurance Co. Ltd vs Mohammad Rafi & Anr on 2 December, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
FAO No.2887 of 2013(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.2887 of 2013(O&M)
Date of decision: 02.12.2013
The New India Assurance Co. Ltd. ......Appellant(s)
Versus
Mohammad Rafi & anr. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Ms. Rohini Bedi, Advocate for Mr. R.S. Madan, Advocate for
the appellant.
Mr. Arvind Bansal, Advocate for respondent No.1.
As per office report, respondent No.2 has been served.
However, no one has put in appearance on his behalf. Respondent No.2 is
ordered to be proceeded against ex parte.
Rakesh Kumar Garg, J. (Oral)
Respondent No.1 filed a claim petition against respondent No.2 as well as the appellant claiming compensation on the averments that he was employed with respondent No.2 as driver on his vehicle Tata Sumo bearing No.PB-13F-7270 at a monthly salary of Rs.3500/- per month and he received injuries on 9.11.2003 in an accident during the course of his employment while driving the said vehicle and resultantly, his right arm was amputated below the elbow.
On appearance, respondent No.2 (employer/owner) filed written statement denying the claim petition in toto. Saini Pushpinder 2013.12.11 14:59 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2887 of 2013(O&M) 2
The appellant, in its pleadings, also denied its liability to pay the compensation.
In support of his claim, respondent No.1 tendered his affidavit as Ex.PW1/A reiterating the averments made in the claim application. In his cross-examination, he stated that he was going to Kurukshetra along with the friends of his employer and vehicle met with an accident. He denied the suggestion that he has filed the claim in collusion with his employer i.e. Respondent No.2. He also denied the suggestion that he was not employed as driver on the vehicle in question or that there was no relationship of employer and employee with respondent No.2. No evidence was led by the appellant.
On the basis of the averments made in the claim application, which were supported by the claimant and his witnesses on oath and other evidence on record, the competent Authority vide impugned order dated 18.2.2013, determined the compensation payable to the claimant and held that the appellant being the insurer of the vehicle of the employer, was liable to pay the said compensation.
The appellant-Insurance Company has filed the instant appeal challenging the impugned order submitting that the following substantial question of law arises in this appeal:
"(1) Whether the claimant was a workman and whether the relationship of employee and employer existed between the deceased and respondent No.2? (2) Whether the learned Commissioner has given the award without appreciating the evidence and thus, findings are perverse?
(3) Whether the claim petition was not maintainable? Saini Pushpinder 2013.12.11 14:59 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2887 of 2013(O&M) 3 (4) Whether loss of 100% earning capacity could be taken keeping in view that disability was much less?"
In support of his case, learned counsel for the appellant has vehemently argued that there is no evidence on record to prove the relationship of employer and employee between the parties. Moreover, the claimant has failed to prove his employment and other facts with regard to his income etc. It is the further case of the appellant that disability of the claimant is only to the extent of 75% which is to be taken to the extent of 55% qua whole body and therefore, the Tribunal has erred while taking the said disability at 100% while determining the compensation. Counsel has further argued that compensation petition was also filed under Motor Vehicles Act and the same was withdrawn, thus, the present application under Workmen's Compensation Act was not maintainable.
On the other hand, counsel for the respondent-claimant has supported the impugned order.
I have heard counsel for the parties.
The arguments raised on behalf of the appellant are liable to be rejected as the respondent-claimant has supported his case by stepping into the witness box. He was cross-examined also. However, nothing came out of his cross-examination. Not only this, no witness has stepped into witness box on behalf of the appellant even to formally prove its defence statement or to contradict the evidence produced by the respondent-claimant.
In view of the unrebutted evidence in favour of claimant on record, the argument raised is misconceived and is liable to be rejected as on the basis of evidence on record, it cannot be argued that findings are not supported by evidence. Thus, it cannot be said that a substantial Saini Pushpinder 2013.12.11 14:59 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2887 of 2013(O&M) 4 question of law arises to the effect of relationship of employer and employee in the instant case.
Similarly, though an issue has been raised before this Court with regard to the maintainability of the petition in view of the fact that claimant had earlier filed a petition under Section 163 of the Motor Vehicles Act, however, despite the fact that an issue was framed with regard to maintainability of the claim petition, the appellant-Insurance Company had not raised any argument in this regard before the competent Authority. This fact is duly noticed by the competent Authority. In view of the aforesaid findings recorded, the said question does not arise in the instant appeal as despite opportunity, the appellant-Insurance Company has not raised any issue and thus, the same amounts to waiver of the ground.
So far as the argument with regard to the disability of the respondent-claimant is concerned, suffice is to say that the respondent- claimant was working as a driver and with an arm amputated he has been incapacitated to drive a vehicle and therefore, no exception can be taken to the order of the competent Authority while taking loss of earning capacity of the claimant as 100%.
In view of the aforesaid, this Court finds no fault in the impugned order.
No substantial question of law, as raised, arises in this appeal. Dismissed.
December 02, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.12.11 14:59
I attest to the accuracy and
integrity of this document
High Court Chandigarh