Gujarat High Court
Chavas Ramji Mavji vs Khavas Shantilal Kanji And Anr. on 14 November, 1990
Equivalent citations: 1992ACJ697, (1992)1GLR387, (1993)IIILLJ793GUJ
JUDGMENT Bhatt, J.
1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 ('Act' for short, hereinafter) is directed against the judgment and award passed by the learned Commissioner for Workmen Compensation at Jamnagar in Workmen's Compensation Application No. 49 of 1981.
2. The appellant in this appeal is the original applicant, who preferred the application for compensation of Rs. 8,100/- alongwith claim of penalty and interest by invoking the aids of the provisions of Section 3 of the Act, before the Commissioner for Workmen Compensation ('Commissioner, for short, hereinafter), at Jamna-gar.
3. As per the case of the applicant, he was serving as a driver of respondent No. 1 /original opponent No. 1, Khavas Shantilal Kanji and was plying his auto-rickshaw bearing registration No. GTP 734. The applicant was getting Rs. 20/- per day over and above Rs. 2/- per day towards miscellaneous expenses from his master. Thus, the applicant was working as a driver of original opponent No. 1. The accident in question occurred, on 5-1-1980. According to the case of the claimant/applicant, he was driving the said auto-rickshaw and was going on towards Street No. 11, Digvijay Plots, Jamnagar. At that time, one boy came, all of a sudden, on the road near Street No. 7 and, in order to save the said boy, the claimant took the rickshaw on the side, as a result of which, the rickshaw was over-turned and consequently the applicant sustained serious injuries on his legs. The applicant was removed to Government Irwin Hospital at Jamnagar, where he was operated and plaster was applied on his left leg. It is also alleged by the applicant that he is unable to perform the work of a driver. The applicant contended that he sustained permanent partial disability to the extent of 25%. He, therefore, claimed Rs. 8,100/- by way of compensation and also prayed for penalty and interest under the provisions of Section 4-A of the Act from both the opponents. Original opponent No. 1 was the owner of the auto-rickshaw and original opponent No. 2 was the insurer of the offending auto-rickshaw. Therefore, the claimant/applicant claimed compensation from both the opponents under the provisions of Section 3 of the Act.
4. Original opponent No. 1 appeared and resisted the claim petition by filing written statement, at Ex. 11. He inter alia, contended that there was no relationship of employer and employee between the claimant/applicant and himself. He contended that the applicant was not a 'workman' within the meaning of the Act. He denied that the applicant was earning Rs. 660/- per month by way of wages. Thus, opponent No. 1, owner of the auto-rickshaw, denied the claim of the applicant totally.
5. Original opponent No. 2, the insurer of the offending auto-rickshaw, appeared and resisted the application by filing separate written statement, at Ex. 16. It also denied the liability for the payment of compensation. Opponent No. 2 also denied that there was any insurance policy in respect of the auto-rickshaw, No. GTP 734.
6. The applicant led the evidence of the following witnesses:
1.
Evidence of the applicant himself Ex. 17
2. Dhansukhlal Karshandas Ex. 22
3. Dr. Hasmukh Keshavlal, Ortho-
paedic Surgeon Ex.25
4. Devji Bhavan Ex. 27
5. Dilavarkhan Sultan Ex.28
6. Jamal Hasan Ex.30
7. Dinesh Hargovind Ex. 28 Original Opponent No. 1 relied on the evidence of the following witness 1. Evidence of the opponent No. 1 Ex. 32 himself The parties also relied on documentary evidence and the reference to which shall be made as and when required at an appropriate stage hereinafter.
2. On appreciation of the evidence on record, the learned Commissioner was pleased to dismiss the aplication with cost on 12-4-1982. The learned Commissioner came to the conclusion that the applicant has failed to prove that he was a 'workman' of original opponent No. 1 at the relevant point of time. It is also held by the learned Commissioner that the applicant has failed to prove that the accident occurred during the course of and out of his employment with : original opponent No. 1. Consequently, the application under Section 3 of the Act filed by the applicant came to be dismissed.
8. Being aggrieved by the said judgment and award passed by the learned Commissioner, the the original applicant has, now, come up before this Court challenging the legality and validity of the same under Section 30 of the Act.
9. Learned Advocate Mr. M.N. Popat appeared for the appellant/original applicant and he contended that the finding of the learned Commissioner that the original applicant was not a 'workman' and that the accident in question had not occurred during the course of and out of the employment with original opponent No. 1 is, totally erroneous and perverse. According to his contention, the learned Commissioner ought to have held that there was relationship of employer and employee between the applicant and original opponent No. 1. Thus, he has seriously challenged the impugned judgment and award.
10. Learned Advocate Mr. Suresh M. Shah appeared for original opponent No. 1, the owner of the auto-rickshaw and has supported the impugned judgment and award. In so as far as respondent No. 2/original opponent No. 2 is concerned, nobody has appeared, though duly served.
11. Before the merits of the rival contentions are examined, learned Advocate Mr. Shah for original opponent No. 1, owner of the offending rickshaw, raised a preliminary objection about the maintainability of the appeal relying on Section 30 of the Act. In that, he seriously contended that this appeal will not be maintainable in the light of proviso to Section 30 of the Act as there is no any substantial question of law involved in the present appeal. It is true that Section 30 of the Act deals with the right to file appeal, wherein, a proviso is incorporated and according to the said proviso, no appeal shall lie against any order, unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is notless than three hundred rupees. We are concerned with the first part of the proviso. A plain perusal of the proviso to Section 30 of the Act would, undoubtedly, indicate that appeal shall be maintainable against any order only when a substantial question of law is involved.
12. Relying on the said proviso, learned Advocate Mr. Shah, submitted that right to claim compensation or whether the original applicant was a workman or not are the questions of facts and they cannot be styled as substantial question of law. This submission, prima facie would appear to be very captivating and subtle, but not sound and sustainable in the light of the decision of this Court rendered in the case of Bai Chandan v. Godhra Borough Muncipality reported in (1974) XV GLR 376. In that case similar situation had arisen. In that case the question was whether the deceased was a workman or not and it was to be answered on the facts of that case and in the light of the legal provisions relating to it. The question whether the accident occurred out of and in the course of employment of the deceased came to be intermixed with the question whether he was a 'workman' or not. It is this intermixture of the two questions which has resulted into the erroneous decision. This therefore raised a substantial question of law and, therefore, the Court is entitled to entertain Letters Patent Appeal under Clause 15 of the Letters Patent. The ratio of the said judgment is, squarely, attracted to the facts of the present case. In view of the aforesaid decision of the Division Bench of this Court, it cannot be said that there is no substantial question of law. In the result, the ingenious contention raised by the learned Advocate for original opponent No. 1 Mr. Shah, cannot be sustained.
13. The original applicant contended that he was driving the auto-rickshaw of original opponent no. 1 at the time of accident as his employee. Therefore, he claimed compensation as a 'workman' of original opponent No. 1 under the provisions of Section 3 of the Act. It would be pertinent, at this stage, to refer to the provisions of Section 3 of the Act. In order to claim compensation under Section 3 of the Act. In order to claim compensation under Section 3 of the Act, the accident must have arisen out of and in course of the workman's employment. There must be some casual relations to the workman's employment and must be due to a riskincidental to the employment. The principles underlying a claim for compensation arc:
(i) There must be a casual connection between the injury and the accident and the work done in the course of the employment.
(ii) Onus is on the applicant to show that it was the work, resulting strain, which contributed to or aggravated the injury.
(iii) It is not necessary that the workman must be actually working at the time of his death or that the death must occur while he is working or that he had ceased to work,
(iv) Where the evidence is balanced, if the evidence shows the greater proportion which satisfies a reasonable amount that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.
14. The point as to whether the original applicant was a workman as defined in the Act or not is very much disputed. Learned Advocate Mr. Shah for original opponent No. 1 has vehemently contended that the injured applicant has failed to prove that he was working as a driver and, therefore, he was not working as a workman of opponent No. 1. In order to appreciate this rival version, it would be necessary, at this stage, to refer to the evidence on record.
15. The applicant is examined, at Ex. 17. It is very clear from his evidence that he was driving the auto-rickshaw of opponent No. 1 Shantilal Kanji, on the date of accident which occurred on 5-1-1980. It is also clearly testified by him that he was paid Rs. 20/- per day, over and above Rs. 2/- for pocket expenses by his master/owner of the rickshaw. Original opponent No. 1-owner of the auto-rickshaw No. GTP 734 is examined at Ex. 32. According to his evidence, the injured applicant was never engaged by him and he was never working as his driver. In fact, the owner of the auto-rickshaw opponent No. 1 has also testified that he had no any connection or relation with the applicant and he even did not know him at all. Thus, according to the contention of original opponent No. 1 - owner of the rickshaw, he had never engaged the original applicant as his driver and, therefore, the original applicant was never his workman. It is contended on behalf of opponent No. 1 -owner of the rickshaw that there isword against work and, therefore, the version of the applicant should not be believed. It is true that the applicant could have led evidence of some other persons to prove that he was working as a driver of original opponent No. 1 - owner of the auto-rickshaw and, that therefore he was his workman. That would have been an ideal situation. However, the Court's anxiety is to see from the evidence available on record as to whether the applicant has, successfully, praved that he was a workman of original opponent No. 1 and that he sustained accidental injuries during the course of employment while driving the auto-rickshaw of opponent No. 1. Of course, the onus is on the applicant to show that he was a workman and he sustained injuries in the course of his employment. The applicant has, explicitly, testified that he was working as a driver of opponent No. 1. This part of his evidence is denied by opponent No. 1. Therefore, the question would arise as to whether the contention of the applicant is acceptable or not. It may be noted at this stage that strict principles and rules of the Evidence Act and Civil Procedure Code are not, in to to, applicable to the proceedings under the Act. The degree of proof in a proceeding under the Act will not be as high as in other ordinary civil controversy or dispute. The evidence in such proceedings is required to be appreciated in this context and, therefore, the version of the applicant appears to be acceptable. There is no dispute about the fact that the applicant had sustained accidental injuries, on 5-1-1980. It is also very clear from the evidence on record that the applicant was driving auto-rickshaw No. GTP 734 on the date of accident. The applicant has sustained permanent partial disablement to the extent of 10 percent on his left leg. He had no reason to falsely involve opponent No. 1 -owner of the auto-rickshaw No. GTP 734, letting off the real owner of the auto-rickshaw. There arc other probabilities which still tilt the balance in favour of the applicant. The applicant had served the owner of the auto-rickshaw/original opponent No. 1 with a notice. A copy of the said notice is produced, at Ex. 18. Acknowledgement slip of the said notice is produced, at Ex. 19. It is contended on behalf of opponent No. 1 by learned Advocate Mr. Shah that the acknowledgement slip is not signed by opponent No. 1 and, therefore, it cannot be relied on. This contention is without any substance. There is no dispute about the fact that, there is complete and correct address in acknowledgement slip, at Ex.19. Therefore, the presumption is that it reaches to the addressee and this itself is sufficient to presume to have been received by original opponent No. 1. The notice is admittedly, not replied nor complied with. This very important circumstance supports. the version of the applicant that he was driving the rickshaw of opponent No. 1 on the date of the accident. The applicant has also relied on the certificate issued by the Assistant Regional Transport Officer, at Jamnagar. The said certificate is produced, at Ex.41. It is, specifically, stated in the said certificate that the auto-rickshaw No. GTP 734 was checked on 9-11-1979 and it was found that one Shantilal Kanji Chauhan was the owner and at that time one 'Ramji Mavji Khavas' who is applicant was the driver. This very important documentary evidence supports the version of the applicant that he was working as a driver of opponent No. 1. Learned Advocate Mr. Shah for opponent No. 1 has contended that this certificate cannot be relied on as it has no evidentiary value. In that, he contended that this is not proved as per the provisions of law. This contention cannot be sustained, firstly, for the reason that no objection was raised when it was tendered in the evidence and when it was exhibited. Secondly, it is issued by a competent Assistant Regional Transport Officer at Jamnagar. The certificate based on the inspection report was produced by one Junior Clerk, Dinesh Hargo-vind Nalhwani, Ex.38. Thus, the documentary evidence produced, at Ex. 41 fully supports the case of the original applicant.
16. On the true and correct appraisal of the evidence, there is no hesitation in holding that the applicant was working as a driver of original opponent No. 1 on the date of accident. There is no dispute about the fact that original opponent No. 1 - Shantilal Kanji was the owner of the auto-rickshaw No. GTP 734, which was involved in the accident. There is also no dispute about the fact that the applicant had sustained accidental injuries. The applicant has, therefore, successfully proved that he was an employee or workman of original opponent No. 1 -owner of the auto-rickshaw and he sustained accidental injuries during the course of employment while he was driving the auto-rickshaw of original opponent No. 1 as his driver.
17. Though opponent No. 1 contended that he never knew the applicant, it was sought to be argued before the learned Commissioner that the applicant was working as a commission agent. Unfortunately, the learned Commissioner committed a serious error in accepting this contention. The learned Commissioner was pleased to hold that original opponent No. 1 had allowed to ply the auto-rickshaw on commission basis. The theory of 'working on commission basis' by the original applicant was neither pleaded nor established. However, this point was upheld by the learned Commissioner against the applicant. Therefore, the learned Commissioner found that since the applicant was driving the auto-rickshaw of opponent No. 1 on commission basis, he would not be a "workman" within the meaning of the Act. He also relied on the judgment rendered in the case of Hasbannessa v. Guazi Zahirddin Mohammed Babar, reported in AIR 1964 Calcutta 61. It appears that the learned Commissioner failed to appreciate the facts of the present case and wrongly relied on the said case. The said decision is not at all applicable to the facts of the present case. There is evidence on record to prove that the applicant was driving the auto-rickshaw of opponent No. 1 and he had sustained accidental injuries, on 5-1-1980, during the course of his employment with opponent No. 1. The finding of the learned Commissioner on this point is erroneous. Therefore, it is required to be quashed. It is very clear from the evidence on record that the applicant sustained injuries in an accident which was caused in the course of the employment. Thus the applicant was working as a workman of opponent No. 1 and he sustained accidental injuries out of and in the course of his employment with opponent No. 1.
18. It brings into sharp focus the amount of compensation to which the original applicant is entitled to on account of accidental injuries. The applicant has, admittedly, sustained serious injuries. He has relied on the evidence of Medical Officer, Dr. Hasmukh Keshvlal, who was examined at Ex.25. The medical certificate is produced, at Ex. 26. It is very clear from the medical evidence on record that the applicant had sustained serious injuries on his left leg and he had sustained permanent partial disablement to the extent of 10 per cent in the working of left leg. It is contended on behalf of the applicant that the applicant was earning Rs. 600/- per month as a driver of the auto-rickshaw. Considering the fact that the applicant sustained permanent partial disablement to the extent of 10 per cent, he would be entitled to Rs. 3024/- by way of compensation under the provisions of Section 4 read with the relevant entry in the Schedule of the Act. This contention is also not disputed on behalf of the opponents. However, the dispute revolves round about the quantum of penalty. The question arises is as to whether the applicant is entitled to penalty and, if yes, how much. It is contended on behalf of the applicant that the applicant is entitled to 50 per cent of the amount of compensation by way of penalty, whereas, it is, seriously, disputed on behalf of the original opponent No. 1. The learned Commissioner has not considered this aspect as he was pleased to dismiss the application for compensation. Learned Advocate Mr. Shah for original opponent No. 1 has, vehemently, contended that this is not a fit case, wherein penalty should be awarded. In fact, considering the facts of the present case, this is the most appropriate case where full amount of penalty for default should be awarded. Under the provisions of Section 4-A of the Act, penalty could be awarded if the employer is in default in payment of compensation due under the Act within one month from the date it fell due, in addition to the amount of the arrears with simple interest at the rate of 6% per annum. There is no justification for not depositing the amount in time. In fact, it would be pertinent to refer that opponent No. 1 - owner of the auto-rickshaw raised, totally, a false and frivolous defence. Not only that, he failed to deposit the amount with the Commissioner in time. But he failed to report about the factum of accident. He had also raised a false defence that he never knew the injured applicant. Thus not only opponent No. 1 failed to accept the liability for the payment of compensation but he remained totally indifferent to the provisions of Section 4-A of the Act and totally denied that the applicant was his driver and workman. Therefore, in the opinion of this Court, this is the most fit case to resort to the provisions of Section 4-A and to award 50% penalty of the amount of award for default, with interest at the rate of 6% per annum from the date of application till the date of realisation.
19. Lastly it would bring into consideration as to whether opponent No. 2, insurer, is liable for the payment of compensation. The insurance policy is not produced on record. The insurer had filed its written statement, at Ex. 16. The insurer-opponent No. 2 contended that the auto-rickshaw No. GTP 734 was never insured with the said opponent. It may be noted at this stage that, initially, the applicant had mentioned the registration number of the offending vehicle as GTP 734. However, there was an apparent mistake and therefore there was an amendment in claim petition. Subsequently, it was mentioned that the registration of the offending auto-=rickshaw is GTP 734 and it belongs to original opponent No. 1 - Shantilal Kanji. It appears that there was no additional written statement or written objections filed on behalf of opponent Nos. 1 and 2. The mistake committed in the compensation application was corrected. Even in the notice, at Ex.18, which is dated 8-9-1981, the correct registration number of the auto-rickshaw was mentioned. It is, specifically, stated in para 1 of the said notice that the registration number of the offending auto-rickshaw is GTP 734. The applicant has also relied on the evidence of Dhansukhlal Karshandas Vithalani who was examined at Ex.22. It is specifically testified by witness Dhansukhlal Karshandas Vithalani who was working as Senior Clerk, that the auto-rickshaw bearing No. GTP 7 34 was insured with original opponent No. 2, the New India Assurance Company Limited. The certificate number of the insurance is, also, specifically mentioned in his evidence. The evidence of the said witness was based on the original register which was brought by him before the learned Commissioner. Thus, it is clearly established from the evidence of Dhansukhlal Karshandas Vithalani that original opponent No. 1 Shantilal Kanji was the owner of the offending auto-rickshaw No. GTP 7 34 on the date of the accident and original opponent No. 2 was the insurer of the said vehicle. The period of insurance covered under the certificate is also mentioned in his evidence. Therefore, there is no any doubt about the factum of insurance in respect of the offending vehicle at the relevant time with opponent No. 2. Unfortunately, nobody appeared on behalf of the original opponent No. 2, though duly served. Be as it may. The question which requires to be considered is whether the insurer-opponent No. 2 can be held liable for payment of compensation under Section 3 of the Act. In this connection, it is pertinent to mention that opponent No. 2, Insurance Company, was called upon to produce the insurance policy or copy thereof through its Advocate and a copy of that notice is also produced on record in the present case. The said notice was addressed to the learned Advocate for opponent No. 2, Mr. Jhaveri, and it was received by him, on 16-3-1982. There is nothing on record to show that this notice was replied or complied with. Since it is evident from the record of the case that the offending vehicle was insured at the relevant point of time, despite the notice being given, the Insurance Company, Opponent No. 2, has not produced a copy of the insurance policy or any record. Therefore, an adverse inference has to be drawn. In the circumstances, the Insurance Company will be also equally liable for the payment of compensation under Section 3 of the Act.
20. In view of the facts and circumstances narrated hereinabove and on reappraisal of the entire evidence on record, the original applicant/ appellant before this Court has successfully proved that he is eligible and entitled to claim compensation under Section 3 of the Act against both the opponents.
21. In the result, the appeal is partly allowed with costs throughout accordingly. The impugned judgment and award is, hereby quashed. The original opponent Nos. 1 and 2 shall pay a sum of Rs. 3024/- with running interest at the rate of 6 per cent per annum from the date of the application till realisation. Original opponent No. 1, owner of the auto-rickshaw, who was the employer at the relevant time, shall also pay a sum of Rs. 1512/- by way of penalty under Section 4-A of the Act.
22. 25 per cent of the amount of award shall be paid to the injured applicant in cash and remaining amount of award together with costs and interest shall be invested in Fixed Deposit for a period of seven years in any Nationalised Bank. The applicant shall be entitled to interest that shall accrue on the said Fixed Deposit Receipt periodically.