Indian Kanoon - Search engine for Indian Law

6. Opposite party No.2 filed its counter and additional counter denying the averments of the claim application such as age, wages, employment of the deceased and also the manner of the accident. It is contended by opposite party No.2 that the deceased being polio affected physically handicapped person was not having MGP,J CMA_928_2013 driving license and he voluntarily took the auto for a joy ride in a fully drunken condition, as such accident occurred. It is further contended that the deceased along with his relatives went to attend a death ceremony of his relative and while returning to home, the accident occurred. Hence, the accident did not occur during the course and out of employment of the deceased under opposite party No.1, as such opposite party No.2 is not liable to pay any compensation. According to opposite party No.2, the deceased was physically handicapped person and he had no valid driving license as on the date of the accident. Therefore, prayed to dismiss the claim petition.

10. Heard both sides.

11. Learned counsel for the appellant/opposite party No.2 contended that the Commissioner erred in holding that the deceased was employed under opposite party No.1 and that there was no employee and employer relationship between them. It is also contended that the deceased was not having valid and effective driving license to drive the vehicle involved in the accident as he was polio affected. Hence, prayed to allow the appeal and set aside the impugned order passed by the Commissioner.

"Whether the applicants are entitled for the compensation as granted by the Commissioner?"

Point:-

14. This Court has perused the entire evidence and documents placed on record by both the parties. Applicant No.1 was examined as A.W.1 reiterating the contents of the claim application and in support of the case of the applicants she got marked Exs.A-1 to A-4. In the cross-examination, she stated that the auto was owned by one Mr. Chandra Shaker and she does not know where said Chandra Shaker resides. She also deposed that the right leg of the deceased was polio affected and the leg is totally disabled. She also stated that her husband took the auto which was involved in the accident from someone and while returning from a function, the accident occurred. She accepted MGP,J CMA_928_2013 that her husband had no valid and effective driving license to drive auto rickshaw. She accepted that she has not filed any document to show the employment details of the deceased under opposite party No.1. On the other hand, she denied that her husband was aged more than 40 years as on the date of accident. She also stated that she does not know whether her deceased husband was competent to drive auto and she denied that the deceased was incompetent to drive auto.

22. Coming to the contention of the learned counsel for opposite party No.2 that the deceased was polio affected and was not having valid driving license, admittedly, A.W.1 in her cross- examination stated that her husband was polio affected. The cross-examination of A.W.1 shows that she stated different MGP,J CMA_928_2013 versions. At one stage, she says that her husband is polio affected and he is not having driving license and at another stage, she denied the suggestion that the deceased was incompetent to drive auto. However, the evidence of A.W.2 shows that A.W.1 is not world wise and innocent. As there are discrepancies in the evidence of the A.W.1 and as A.W.2 contended that A.W.1 is not in sound mind, the Commissioner has not considered the evidence of A.W.1. Admittedly, except placing reliance on the statement of A.W.1, no oral or documentary evidence is placed on record by opposite party No.2 to prove that the deceased was polio affected. In the said circumstances, this Court is of the considered opinion that in the absence of contrary evidence, the Commissioner rightly came to the conclusion that the deceased was not affected with polio. Furthermore, when two views are possible, the view that is beneficial to the applicants has to be taken, since the Employees' Compensation Act, 1923, is a beneficial legislation meant to protect the interest of employees and workers.