Madras High Court
Sivamurugan vs Sivanu on 3 December, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/12/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1034 of 2007 Sivamurugan ... Appellant Vs. 1.Sivanu 2.The Branch Manager, National Insurance Co. Ltd., 175-A, Great Cotton Road, Tuticorin - 628 002 ... Respondents Prayer Appeal filed under Section 30 of the Workmen Compensation Act, 1988, against the award dated 13.03.2007, passed in W.C.No.319 of 2004, on the file of the Commissioner for Workmen Compensation, Madurai. !For Appellant ... Mrs.J.Anandavalli ^For 1st Respondent ... No appearance For 2nd Respondent ... Mrs.P.Malini :JUDGMENT
This appeal is focussed as against the award dated 13.03.2007, passed in W.C.No.319 of 2004, on the file of the Commissioner for Workmen Compensation, Madurai.
2. Heard both sides.
3. The challenge in this Civil Miscellaneous Appeal is relating to the dismissal of the claim of the appellant by the Commissioner of Workmen Compensation, Madurai.
4. A Re'sume' of facts absolutely necessary and germane for the disposal of this Civil Miscellaneous Appeal would run thus:
On 16.02.2004 at about 16.00 Hours the appellant drove the lorry bearing Registration No.TN 74-D-6350, which belonged to his father ie. first respondent Sivanu, which was insured with the second respondent, and parked it on a sandy area ie. Melakuyilkudi Kanmoikarai, near Nagamalai Pudukottai. The loadmen were carrying on with the work of loading the sand; at that time the appellant was standing nearby; it so happened that the sand fell on him and he sustained the following injuries:
(1) A sutured wound size 2 x 3 cm. (2) Linear abrasion of size 4 x 1 cm. Over the contra of the chest.
(3) Left forearm bone fractured and head injury and multiple injuries all over the body.
The loadmen as well as the appellant filed claims separately before the Commissioner for Workmen's Compensation, claiming compensation on the ground that they happened to be the employees of the first respondent herein. Relating to the claims of the loadmen the authority concerned awarded compensation by holding that there was employer and employees relationship and compensation should be paid by the respondents therein jointly and severally. However, the claim of the Sivamurugan, the appellant herein, was dismissed on the sole ground that since he happens to be the son of the owner of the lorry that the appellant could not be treated was working as an employee under his father.
5. Being aggrieved by and dissatisfied with the method and manner in which the claim of the appellant was dismissed, this appeal has been filed on the following main grounds:
The Deputy Commissioner for Workmen's Compensation without any basis dismissed the claim of the petitioner by simply holding that the appellant happens to be the son of the owner of the lorry.
6. On the perusal of the records including the order of the Commissioner for Workmen's Compensation dated 13.03.2007 and upon hearing the arguments of both sides, I am of the considered opinion that the following substantial questions have arisen in this case:
(1) Whether based on the fact that the driver of the vehicle happens to be the son of the owner of the vehicle, can there be any presumption that there could be no employee employer relationship between the two? (2) Whether the dismissal of the claim application by the Commissioner that the appellant is not a workman as he being the son of the first respondent is sustainable in law?
7. Points 1 and 2: The perusal of the impugned order of the Deputy Commissioner would reveal that only in the last paragraph he set out the reasons as under:
"On perusal of FIR, it is clearly proved that the Driver of the vehicle Thiru. Sivamurugan is the son of Thiru.Sivanu, the 1st respondent. Further the P.W.1 also admitted he is the son of the 1st respondent. Hence, there is no Employer and Employee relationship between the 1st respondent and the Driver except the relationship of Father and Son. The basic requirement of the Workmen's Compensation Act it is not fulfilled, hecne the application is dismissed. I order accordingly."
Ex-facie and prima-facie the Deputy Commissioner was not justified in jumping to the conclusion that because P.W.1, the claimant happens to be the son of Sivanu, the owner of the lorry, there could be no employer employee relationship between the two.
8. The learned counsel for the appellant would cite the decision of the Karnataka High Court in United India Insurance Co. Ltd. v. Prakash Shankar Gurav reported in 2006 ACJ 747 in support of her contention. Whereas the learned counsel for the second respondent cited the decision of the Honourable Apex Court in Gottumakkala Appala Narasimha Raju v. National Insurance Co. Ltd., reported in 2007 ACJ 1025. An excerpt from it would run thus:
"25. 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. Of 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 Sections 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 could 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 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."
The perusal of the aforesaid decision of the Honourable Apex Court makes it clear that there could be employer and employee relationship between the close relatives, but there should be evidence. I could see that the claimant might have thought that his mere deposition was much more sufficient, coupled with the counter of the first respondent, to prove his case. But I am of the considered opinion and too in the wake of the above decision of the Honourable Apex Court, that some more evidence is required and the claimant/appellant could be give one more opportunity to put forth his further evidence before the Deputy Commissioner for Workmen's Compensation to prove that he happens to be the employee of his own father at the relevant time of the accident. Relating to the method and manner of adducing additional evidence the appellant shall decide as to what are the evidence to be placed before the Commissioner for Workmen's Compensation. Ample opportunity shall be given to the appellant to adduce such evidence. I make it clear that simply because the injured driver happens to be the son of the owner of the vehicle, there is no presumption that there can not be any employer and employee relationship between them.
9. Hence, the matter is remitted back to the Workmen Commissioner to dispose of the matter purely on merits within two months from the date of receipt of a copy of this order after giving ample opportunity to the appellant to adduce additional evidence. No costs.
sj To
1.The Commissioner for Workmen's Compensation, Madurai.