Bombay High Court
Smt Lata Ramchandra Ubale vs Shri Ramchandra Shankar Ubale on 8 May, 2012
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
1 fa397-11
rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURSIDICTION
FIRST APPEAL NO. 397 OF 2011
Smt Lata Ramchandra Ubale,
Age - 42 years, Occu.-Household,
R/at. Post Wada,
Tal. Khed (Rajgurunagar) .. (Orig. Applicant)
District - Pune Appellant
V/s.
1) Shri Ramchandra Shankar Ubale
Age 50 years, Occu.- Business,
R/at. Post Wada,
Tal. Khed (Rajgurunagar)
ig .. (Orig. Employer)
District - Pune
2) United India Insurance Co.Ltd.,
Having its office at D.O. 4
Leela Chambers, Pune Satara Road, .. (Orig. Insurer)
Pune - 411 037. Respondents.
.....
Mr. A. M. Gokhale i/b. M. B. Kotak for the Appellant.
Mr. Mayuresh Modgi for Respondent No.1.
Mr. Ketan Joshi for Respondent No.2.
.....
CORAM : MRS. MRIDULA BHATKAR, J.
JUDGMENT RESERVED ON : MARCH 26, 2012
JUDGMENT PRONOUNCED ON : MAY 8, 2012
JUDGEMENT :
The Appeal is directed against the Judgment and order dated 29th November, 2010 passed by the Commissioner for Workmen's Compensation & Judge First Labour Court, Pune.
The original Applicant is mother of the deceased namely Lalit Ramchandra Ubale who died in an accident on 13 th March, 2000. The deceased was driving the jeep when he met with ::: Downloaded on - 09/06/2013 18:35:09 ::: 2 fa397-11 an accident. Respondent No.1 Ramchandra Shankar Ubale is the father of the deceased and Respondent No.2 is the Insurance Company. Applicant has filed claim under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act"). The Application was dismissed by the Commissioner mainly on the ground that Applicant has failed to establish her case under Section 3 of The Act.
2. This being an Appeal under Section 30 of The Act, the substantial question is as follows:
(a) Whether the Commissioner has committed an error in holding that the deceased son of the Applicant was not in the employment of Respondent No.1 and hence the case is not covered under Section 3 of The Act ?
3. The learned counsel for the Appellant has submitted that in this case Appellant mother was residing away from her husband along with her deceased son 13 to 14 years prior to the date of the accident. She was residing with her mother at Junnar, District Pune. The deceased was 19 years old at the time of the accident and he was employed as a driver on a jeep owned by his father. On the point of ::: Downloaded on - 09/06/2013 18:35:09 ::: 3 fa397-11 employment, the Applicant has examined herself, her mother Kamalabai Keshav Karpe and Respondent No.1 Ramchandra Keshav Ubale. He submitted that through the evidence of Respondent No.1 Ramchandra, the Applicant produced payment slip at Exhibit-50 made to their son for the job as a driver. All the three witnesses have deposed that Respondent No.1 used to pay Rs.3,000/- per month and Rs.25/- daily Bhatta to the deceased. He argued that the Commissioner ought to have believed the evidence of these three witnesses and the payment slip at Exhibit-50 which proves the fact of employment of the deceased with the Respondent father. He argued that the Commissioner has committed an error in rejecting this evidence and holding that the employment of the son cannot be considered as employment with his father under The Act. He relied on following rulings:
(1) Ashiwani Kumar Mishra V/s. P. Muniam
Babu & Others reported in 1999 ACJ 1105.
(2) Oriental Insurance Co. Ltd. V/s. Hanumant
and Another reported in 2006 ACJ 251
(3) Manohar Bhimappa More V/s. Mahadev
Bhimappa More and another reported in 2006 ACJ
850. ::: Downloaded on - 09/06/2013 18:35:09 ::: 4 fa397-11 He argued that Applicant is a mother and though she is not a widowed mother she was dependent on the deceased, therefore, she is entitled to claim compensation under Section 2(1)(d)(iii)(b) of The Act.
4. He argued that this being Workmen's Compensation Act, a social legislature, the Commissioner ought to have taken approach in favour of the Applicant and allowed the claim.
5. Learned counsel for the Insurance Company while opposing Appeal submitted that there was no employer employee relationship between the deceased and the Respondent No.1. The Respondent No.1 was the owner of a jeep and the deceased being his son was the co-owner of the jeep. He was never in employment as a driver of Respondent No.1. The evidence of the Applicant that she was residing separately and her relationship with her husband was strained is false and the Commissioner has rightly discarded the said evidence by rejecting the claim. The Applicant was never dependent on the income of the deceased. He argued that the insurance company has adduced evidence to assail the case of the Applicant and the commissioner has rightly ::: Downloaded on - 09/06/2013 18:35:09 ::: 5 fa397-11 relied on the said evidence and has dismissed the claim.
6. The issue involved in the Appeal is short. The fact of the employment and the relationship of the deceased and Respondent No.1 as employer employee is challenged by the insurance company. The Act is a beneficial legislature enacted in the interest of the workman who should get immediate financial aid to assist his family to come out of the sudden financial crisis they have faced due to the accident which has taken place in the course of the employment. Under The Act, the burden lies on the Applicant to prove the basic fact of the employment and the accident had taken place in the course of the employment. In the present case, the fact of accident is not disputed but the relationship of the deceased with his father as a employer and employee is under challenge. It is made clear that a member of a family can be employed by the other member of the family. A wife or a son can be employed by the husband or father and the wages can be paid in the capacity of employer to the other family member.
Law acknowledges such employer employee relationship amongst the family members of one family. Court cannot turn the Nelson's eye to the ground realities in the urban as well as rural families and their work culture. In India still ::: Downloaded on - 09/06/2013 18:35:09 ::: 6 fa397-11 joint family system exists. Brothers or son and father or spouses form partnership or a company and can be employed in such establishment. In the rural areas such employment in agricultural, dairy business is possible. The issue is not res-
integra. In Oriental Insurance Company Ltd. V/s Hanumant & Anr. (Supra) where the Single Judge of Karnataka High Court held that :
"2. The contention of the insurer that there exists no relationship of employer and employee since the respondent No.1 (driver) happens to be the son of the owner of the jeep, respondent No.2, therefore, there cannot be a relationship of employer and employee is an untenable argument. It is not uncommon amongst the business family to engage their own kith and kin on employment for doing the business or commercial activity. Merely business in such a situation no wages are paid in cash is also not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind computable in terms of money for the services rendered. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship. Therefore, the fact that the respondent No.1 and Respondent No.2 are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under Workmen's Compensation Act."
(Emphasis supplied)
7. Thus, Single Judge of the Karnataka High Court has taken a view that though there is no payment in cash but if consideration is in kind computable in terms of money for the ::: Downloaded on - 09/06/2013 18:35:09 ::: 7 fa397-11 services rendered, yet it is to be considered as an employment. I must note that though I relied on this ruling in support of view that the family member employed with other family member is in the employment under The Act, I am hesitant to subscribe the view taken by the Single Judge that even if there is no wages in cash but the consideration in kind computable in terms of money for services rendered if paid then the fact of employment is proved. I am of the view that it is necessary to prove the wages in terms of money to prove the fact of employment. Otherwise each and every service which is rendered by the family members is computable in terms of kind and this criterion can be stretched to the extent of every relationship amongst the family members as employer employee relationship. This is not contemplated under Section 3 of The Act. Section 2(m) of the Employees Compensation Act, 1923 defines wages as follows:-
"Wages" includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid or by the employer of [an employee] towards any pension or provident fund or a sum paid to [an employee] to cover any special expenses entailed on him by the nature of his employment."
8. The Section does not state anything about 'paid in kind' but the phrase used is "capable of being estimated in money".
::: Downloaded on - 09/06/2013 18:35:09 :::8 fa397-11 Thus, necessarily the wages are to be paid in cash and not in kind. For better understanding of 'wages in kind' the definition under Section 2(h) and Section 11 of the Minimum Wages Act, 1948 can be relied wherein payments towards certain facilities or contributions are excluded from the definition of wages. Section 11 of the Minimum Wages Act specifically states about "wages in kind" that minimum wages payable under the Act shall be paid in cash except the payment which is allowed to be paid as wages approved by the Government notification as mentioned in Section 11 Sub-
Sections (2), (3) and (4). Thus, the wages paid by the employee to the employer is necessarily in cash therefore, it should be capable of being estimated in money. In the present case there is no evidence that father used to pay to deceased son wages in kind but it is a specific case that wages were paid in cash Rs.3,000/- per month and Rs.25/-
Bhatta per day. Thus, the ratio of Karnataka High Court that there can be employer and employee relationship between the father and the son is applicable. However, the view taken by the said Bench that wages can be paid in kind in relationship under Section 3 of the Act is not acceptable.
It is true that when son is employed by the father then pay slips might not have been received, register might not have ::: Downloaded on - 09/06/2013 18:35:09 ::: 9 fa397-11 been maintained especially when the family is from the rural area. It is too much to expect such kind of paper work from the family but a latitude is required to be given to the Applicant. However, this leniency not to be mistaken that no burden of proof is required in the case. It is not a situation that if the Applicant claims compensation for death of her son under the Act, and avers the employment with his father then that is to be accepted as gospel truth.
9. In the present case, Applicant has deposed that her relationship with her husband was strained and she was residing at Junnar along with his mother Kalabai Keshav Karpe who is examined by the Applicant. Ramchandra, Respondent No.1 also tendered evidence to prove the employment of the deceased with him. Lata, the Applicant has stated that she has been residing separately from her husband since 1986 along with the deceased and her daughter at Junnar where her mother resides. However, in the Application and Appeal, her address is not of Junnar but it is the address of her husband Respondent No.1. She has not claimed any maintenance from her husband though she was residing away from him since 1986. Kalabai Keshav Karpe has produced the ration card Exhibit-41 where name of ::: Downloaded on - 09/06/2013 18:35:09 ::: 10 fa397-11 her deceased grand son has been entered. However, she admitted that ration card was obtained after claim was filed.
Therefore, such evidence of ration card is rightly discarded by the Commissioner. The Commissioner has disbelieved that Lata was residing away from Respondent No.1 along with the deceased. Under Section 2 of The Act, the definition of the dependent is given. Categories of the dependent on the basis of their degree of dependency are classified in Section 2 of The Act. Thus, under Section 2(1)(d)(i) a widow, a minor legitimate son, unmarried legitimate daughter or widowed mother are considered as dependent irrespective of their whole or partial dependency. However, under Section 2(1)
(d)(iii)(b) a parent other than widowed mother if wholly or partly financially dependent at the time of death of the workmen is dependent. Thus, if a parent, may be a father or a mother who is not a widowed mother, if proved that he or she is partly or wholly dependent then, a parent is to be accepted as a dependent.
10. In the present case, to prove the fact of employment all the three witnesses i.e. Latabai-mother, Kalabai-grand mother and Ramchandra-father have given oral evidence that the deceased was working as a driver on the jeep owned by ::: Downloaded on - 09/06/2013 18:35:09 ::: 11 fa397-11 the Respondent No.1 father. If such a evidence is not controverted then it can be accepted. However, the insurance company has vehemently disputed the fact of employment not only by cross-examining these witnesses but by actively leading evidence of two witnesses to demolish the case of the Applicant. The counsel of the insurance company sought important admissions in the cross-examination of Kalabai-
grandmother of the deceased and also Ramchandra- father of the deceased. It was deposed that deceased as a driver used to carry vegetables for sale from one place to the other but did not give any money to father. If at all the vegetables were taken from one place to other and sold then whatever money was earned that was to be given to the employer by the driver. However, there is a admission of the witnesses that no money was given by the deceased son to his father after selling the vegetables. The Respondent No.1 deposed that he used to earn Rs.15,000/- to 20,000/- monthly and he has also employed 2 or 3 labourers in the agricultural field and he used to pay Rs.3,000/- per month and Rs.25/- daily Bhatta to his deceased son. Thus, the total of the wages paid by the Respondent No.1 was Rs.9,000/- to 10,000/-, which appears excessive, disproportionate to his monthly earning.
::: Downloaded on - 09/06/2013 18:35:09 :::12 fa397-11
11. Insurance company has examined witness Sanjay Sadashiv Kohinkar who is an advocate and has investigated the matter by visiting personally to the house of Respondent No.1 and ascertained the fact of employment of the deceased with Respondent No.1. He submitted a report to the insurance company and has deposed that he personally made an enquiry with the brother of Respondent No.1 and also enquired on cell phone with Respondent No.1 regarding the employment of the deceased. Respondent No.1 and his brother specifically denied the fact of the employment of the deceased with Respondent No.1 and have stated that he was a family member and was not employed. The Commissioner rightly believed the evidence of these witnesses. His evidence cannot be discarded only because he is an interested witness.
Considering the evidence of the witnesses of the Applicant and the evidence of Mr. Kohinkar, the insurance company has successfully dislodged the evidence of the Applicant on the point of employment of the deceased.
12. There are neither specific rules nor straight jacket formula can be applied to prove the fact of employment of one family member with other family member. It entirely depends on the facts and circumstances of each and every ::: Downloaded on - 09/06/2013 18:35:09 ::: 13 fa397-11 case independently. However, it is necessary for the Applicant to tender the evidence to prove the fact of the employment and the fact of accident as taken place in the course of the employment. The burden lies on the Applicant.
Once the evidence is tendered then onus shifts on the insurance company to disprove this particular fact. If evidence goes uncontroverted or evidence of the Applicant is found believable then on the point of employment the Commissioner may accept evidence of the Applicant. Though, a mathematical formula of the evidence cannot be set in the form of rules, the Commissioner is required to apply yardstick of reasonable common sense and accept the evidence which satisfies his rational thinking and conscious. The word "employment" used in Section 3 of the Act is with specific purpose and the Courts are required to give the correct and appropriate meaning to the said word. Under such circumstances, I hold that the view taken by the Commissioner is a correct view. Thus, the Judgment and Order passed by the Commissioner is not illegal, bad in law and requires no interference. Appeal is accordingly dismissed.
(Mrs. Mridula Bhatkar, J.) ::: Downloaded on - 09/06/2013 18:35:09 :::