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[Cites 6, Cited by 0]

Jharkhand High Court

Rekha Devi vs Bablu Modak on 5 July, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                    M.A. No. 781 of 2018
1. Rekha Devi.
2. Babli Kumari.                           .....      ...    Appellants
                          Versus
1. Bablu Modak.
2. M/s magma HDI General Insurance Co. Ltd.,
   Divisional Office, Magma House,
   24 Park Street, Kolkata.                     ..... ...     Respondents
                          --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Nikhil Ranjan, Advocate. For the Ins. Company : Mr. Alok Lal, Advocate.

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C.A.V. on 27.06.2024 Pronounced on 05.07.2024 Heard Mr. Nikhil Ranjan, learned counsel appearing for the appellants and Mr. Alok Lal, learned counsel appearing for the respondent No. 2 (insurance company).

2. This Memo of Appeal has been preferred by the claimants against the judgment / award dated 16.12.2017, passed by the learned Presiding Officer, Labour Court, Dhanbad, in W.C. Case No. 13 of 2014, whereby the claim case, filed by the appellants-claimants has been dismissed by the learned Tribunal.

3. Mr. Nikhil Ranjan, learned counsel appearing for the appellants-claimants has submitted that the appellant No. 1 happens to be the wife of deceased Naresh Pramanik, whereas the appellant No. 2 happens to be the minor daughter of the deceased Naresh Pramanik. He then submitted that the deceased Naresh Pramanik was permanent employee of Bablu Modak and was working as driver of the tractor of said Bablu Modak and on 21.08.2013, Naresh Pramanik was performing his duties and at about 12.00 A.M., when he was plying the tractor with sand loaded in the same and while he was crossing Shiv Sagar Drain, a flood tide has been occurred in Shiv Sagar Drain and the driver and tractor came in contact with the flood tide and drawn of and dead body of the deceased driver was recovered from Jamunia River at Giridih. He further submitted that for the death of the deceased Naresh -1- M.A. No. 781 of 2018 Pramanik, U.D. Case No. 07 of 2013 has been registered and post- mortem was made and final report has been submitted, stating that the deceased died due to drowning. He further submitted that in this background, the case was filed before the learned Labour Court, Dhanbad under the provisions of Employees Compensation Act, 1923.

4. Learned counsel appearing for the appellants submitted that the appellants examined two witnesses namely Rekha Devi and Nimai Chandra Thakur. He submitted that the appellants have also proved the certified copy of the FIR, certified copy of the written report, certified copy of the final report, original copy of death certificate of the deceased Naresh Pramik. He submitted that on behalf of the respondent No. 1, the employer Bablu Modak and one Binay Chawla were examined. He further submitted that the alleged occurrence took place within the jurisdiction of the district of Dhanbad although the dead body was recovered from Jamuni River within the district of Giridih. He submitted that the witness Nimai Chandra Thakur was the eye witness to the said accident, as he was also working on the said tractor along with co-worker, who succeeded to save their lives. He then submitted that the deceased was also carrying the driving license and the same got damaged / misplaced at the time of accident. He further submitted that the deceased was aged about 35 years and was getting salary of Rs. 8,000/- per month apart from that daily wages of a sum of Rs. 50/- per day. He also submitted that no documentation was made for the said employment between the deceased and the employer namely Bablu Modak.

5. By way of referring the judgment / award passed by the learned Tribunal 16.12.2017, learned counsel appearing for the appellants submitted that the learned Labour Court has wrongly come to the finding that there was no employer employee relationship between the deceased and the owner of the tractor. He -2- M.A. No. 781 of 2018 submitted that one eye-witness was there on the said tractor and was also working along with the deceased, who has narrated the entire occurrence before the learned Presiding Officer, Labour Court, Dhanbad, in spite of that he has turned down. He submitted that on the ground that the deceased was not the employee of the owner and he has been pleased to dismiss the claim petition.

6. Learned counsel appearing for the appellants submitted that the Workmen Compensation Commissioner is the last authority on facts. He further submitted that the identical was the subject matter in the case of Fulmati Dharamdev Yadav & Anr. Versus New India Assurance Co. Ltd. & Anr., reported in 2023 Live Law (SC) 746, wherein the Hon'ble Supreme Court in paras-27 and 28 held as follows:-

"27. From the materials available on record before the Commissioner as described in the order, it certainly will not be an improbable, much less an impossible, conclusion that the deceased was on the pay-roll of the employer. Prima facie, the question that arises and remains un-addressed throughout was, as to what the deceased was doing with the trolley as also the goods laden on it, which he was tying or untying at the time of his death. Second, the affidavit placed before the Commissioner categorically stated that deceased was an employee of the employer. It has been noted by the Commissioner, in his consideration of the second issue that, no written statement had been filed nor had the version of the Applicants been challenged by the employer; and even though the Respondents herein had denied the facts as stated in the petition and cross examined the Applicants, "but no adverse facts proved" by and "no adverse document produced" by the Insurer to rebut the contents of the claim petition.
28. Additionally, having gone through the -3- M.A. No. 781 of 2018 record we find that in the Panchnama of the place of occurrence, it has been recorded that there was only one person present at the spot. He was Sunilbhai Ramjibhai Ahir and was serving as a supervisor in the company of the employer. The inquest panchnama form also names the employer company. The address mentioned, with which the deceased was associated as also the person who has identified the corpse of the deceased, for both of them it corresponds to that of the employer company."

7. Relying on this judgment, he submitted that in the case in hand, one co-employee was also there as an eyewitness, in spite of that the learned Tribunal has been pleased to dismiss the claim petition. On these grounds, he submitted that the impugned judgment / award may kindly be quashed and appropriate direction for granting compensation may kindly be issued.

8. On the other hand, Mr. Alok Lal, learned counsel appearing for the respondent No. 2 (Insurance Company) has submitted that the learned Tribunal has rightly come to that conclusion that as nothing was on the record to suggest that the deceased was the employee of the owner of the tractor that too was also denied by the owner of the tractor, as such, there is no illegality in the said judgment / award. He submitted that the insurer has the defence and he refers to the case of National Insurance Co. Ltd. Versus Mastan & Anr., reported in AIR 2006 SC 577. Relying on the said judgment, he further submitted that the claim cannot be sustained in view of the Motor Vehicles Act as well as Workmen Compensation Act. He further submitted that the insurance company has also taken the plea before the learned Tribunal of the point that the deceased-driver was not being carried the valid license and he refers to the case of Beli Ram Versus Rajinder Kumar & Ors., reported in MANU/SC/0715/2020. On these grounds, he submitted that there is no illegality in the impugned -4- M.A. No. 781 of 2018 award, as such, this court may not interfere in the matter.

9. In view of the above submissions of the parties, the court has gone through the materials available on record including the judgment / award dated 16.12.2017. The learned Tribunal while deciding the said compensation case has noted that the second witness of the appellants namely Nimai Chandra Thakur has deposed in his affidavit vide paras-1 and 2 that he was working as a labourer on the said tractor. He and four other co- workers/labourers could save their lives by swimming and he supported that the deceased was the driver of the tractor of the employer Bablu Modak, who is the owner of the tractor.

10. In spite of the oral and documentary evidence, the learned Presiding Officer, Labour Court, has rejected the claim of the appellants on the ground that the employer and employee relationship was not there. One of the witness has stated about the incident, how they have saved their lives are also disclosed and has also stated that the deceased was drown away. Thus, there is a direct eyewitness to the occurrence, who has disclosed the entire story and also stated that the deceased was working with the owner of the tractor namely Bablu Modak and the learned Tribunal has erroneously come to the conclusion that the claim of employer employee relationship with Bablu Modak, who is owner of the tractor has not been established.

11. Generally, the High Court is not accepted to deal with the factual position, but in this case the conclusion has arrived by the learned Presiding Officer, Labour Court with respect to oral and documentary evidence of the claimants regarding the employment and the alleged accident. The Division Bench of the Madras High Court in the case of K. Kamalaveni & Ors. Versus The Managing Director, Subbathal Spinning Mills (P) Limited, Erode & Ors., reported in 2004 0 Supreme (Mad) 809 in para-18, has held as under:-

-5- M.A. No. 781 of 2018
"18. The above said definition clearly lays down that in order to exclude a person from the category of "workman", two ingredients must be present. Those ingredients are that the employment of such a person should not only be of casual in nature but also for a purpose otherwise than for the purposes of employer's trade or business. Both these qualifications must be satisfied in order to exclude a person from the category of "workman" under the Act. There is a catena of decisions bearing on this point. All the decisions have taken note of a similar provision in Workmen's Compensation Act, 1906 in England. This Court has laid down the said proposition in Arumugam v. Nagammal, (1948)2 M.L.J. 639: A.I.R. 1949 Mad. 462; Vinayak Mudaliar v. Mundala Pottiamma, (1952)2 M.L.J. 774: A.I.R. 1953 Mad. 432 and T.N.Sitharama Reddiar v. A.Ayyaswami Gounder, (1955)2 M.L.J. 768:
A.I.R. 1956 Mad. 212. A plain reading of the definition of 'workman' in the Act shows that the word used as conjunction is "and"

and therefore it will have to be held that both the ingredients mentioned above would have to be satisfied in order to exclude a person from the category of the said definition. Thus if a person is employed for the purpose of a trade or business, the employer is liable even if the work is of a casual nature. Similarly, if a person is employed in a work which is not of casual nature, the employer is liable even if the work is not for the purpose of a trade or business of the employer."

12. In the case of Chandramma Versus Manager, Regional Office, NCC Limited & Anr., reported in (2023) 2 SCC 144, the guidelines with regard to compensation arising out of the Employees Compensation Act have been made in paras-10 to 12, which are as under:-

-6- M.A. No. 781 of 2018
10. Before adverting to the merits of the case, it is necessary to analyse the meaning of compensation awarded in cases where the victim has suffered permanent partial disability. In common parlance, compensation is often described as "something, typically money, awarded to someone in recognition of loss, suffering or injury". Under the Workmen's Compensation Act, 1923, it is mandatory for the employers to pay compensation to their employees or workmen for a work-

related accident, fatality, injury, or illness. The Objective of the 1923 Act is two-fold.

First, it enables employees and their dependents to get compensation from their employers in case an accident causes an employee's death or disability; second, it mandates employers to pay compensation to their workers if they contract certain job- related illnesses or diseases.

11. In relation to the above objective, it is essential to advert to Section 3 of the 1923 Act which states that an employer is liable to pay damages to its workers under the following conditions:

i. If a worker has an occupational disease mentioned under Part A, B, C of Schedule III. The disease has to be a result of an injury by accident during work hours.
ii. An injury sustained by an employee during work that leads to total or partial disability iii. Death of an employee due to a work- related hazard.

12. Ideally, the compensation should be provided to the employees against the hazards of employment to which an employee is exposed. This also includes any occupational disease or industrial accident that the employee may encounter arising out of or during the course of employment which leads to disability or death.

-7- M.A. No. 781 of 2018

Specifically, a worker is entitled to compensation in case of i. Death ii. Permanent Total Disablement iii. Permanent Partial Disablement iv. Temporary disablement- both total and partial v. It has contracted an occupational disease.

13. Even in the case arising out of the said Act, if a driver appoint a cleaner for the truck in question, the action of the driver to be viewed as agent of the owner and if any injury caused to the cleaner by way of working on the said truck, the owner of the truck is liable to pay compensation, as has been held by the Division Bench of the Bombay High Court in the case of Mohd. Anis Mohd. Elyeas Khan Versus IItiza & Company & Ors., reported in 2000 (1) LLN 519.

14. In view of that restricted meaning to term cannot be made. The flood means overflow of water over land. It can be classified into three categories (i) coastal floods; (ii) fluvial floods (river floods) and (iii) pluvial floods (surface floods). The coastal floods occur when water from a sea or an 6 ocean flows into nearby areas. They are caused by extreme tidal activity (high tides) or by storm surge or by simultaneous occurrence of both these phenomena. This aspect of the matter was considered by the Hon'ble Supreme Court in the case of "Oriental Insurance Company Limited Vs. J.K. Cement Works (2020) 19 SCC 794.

15. In view of the above facts, it is crystal clear that the learned Tribunal has not given emphasis to the eyewitness and the incident in question and it cannot be said that the employer employee relationship was not there. Destroying of the license kept in the pocket and in a situation the dead body of the deceased had gone to another river bank, cannot be ruled out, however, the learned Tribunal has not decided the issue of compensation and the defence of the insurance company on merits, which can be the -8- M.A. No. 781 of 2018 subject matter of evidence.

16. In view of the above facts, reasons and analysis, the court finds that the employer-employee relationship is made out and the learned Tribunal has not decided the claim on merits. As such, the impugned judgment / award dated 16.12.2017, passed by the learned Presiding Officer, Labour Court, Dhanbad, in W.C. Case No. 13 of 2014 is not in accordance with law and the same is set aside.

17. The matter is remitted back to the learned Presiding Officer, Labour Court, Dhanbad to pass a fresh order on the point of quantum of compensation.

18. This petition is allowed and disposed of in the above terms.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.

Dated the 5th July, 2024.

AFR/ Amitesh/-

-9- M.A. No. 781 of 2018