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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 752 OF 2003
The National Insurance Co. Ltd. ... Appellant
v/s
Smt.Manisha Chagan Karande & ors. ... Respondents
Mr.S.R.Singh for the appellant.
Mr.S.S.Kulkarni for the respondent No.6.
Mr.S.S.Shetye for respondent Nos.1 to 5.
CORAM: SMT.NISHITA MHATRE, J.
DATED: 31ST JULY, 2009
ORAL JUDGMENT:
1. This first appeal has been filed against the
order of the Commissioner for Workmen’s Compensation
under which the claimants i.e. respondent Nos.1 to 5
have been awarded compensation of Rs.2,11,790/-
along with the simple interest at the rate of 9% per
annum from 16.5.2001 till actual payment. A penalty
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of Rs.25,000/- and costs of Rs.1000/- have also been
awarded.
2. The deceased was the husband of the 1st
respondent, the father of respondent Nos.2 and 3 and
the son of the 4th and 5th respondent. He was driving
a jeep on 15.5.2001 when he met with an accident.
As a result of this accident and the injuries
sustained
relatives
by
i.e.
him, the
respondent
deceased
Nos.1
expired.
to 5 filed
His
an
application under the Workmen's Compensation Act
claiming compensation from both the appellant as
well as the respondent No.6, his employer.
3. It was the contention of the claimant that the
deceased was an employee of the respondent No.6 and
he was driving employer’s vehicle when he met with
an accident. It was pleaded that the accident had
arisen out of and in the course of employment and,
that therefore, the claimants were entitled to
compensation under the Workmen’s Compensation Act.
4. The application was contested by both, the
Insurance Company as well as the employer.
Initially, it was decided ex-parte. However,
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thereafter both the Insurance Company and the
employer had got ex-parte order set aside and the
claim was decided after the trial.
5. The claimants examined respondent No.1 herein
i.e. the widow of the deceased. She stated on oath
that her husband was an employee of the respondent
No.6 and that he was driving the jeep which was
accident.
owned by the respondent No.6 when he met with an
In her cross-examination she denied the
suggestion that her husband was not employed with
respondent No.6.
6. Respondent No.6 examined himself and deposed
that he had signed the claim form which was filled
in by the surveyor who had come to the garage where
the jeep was being repaired after the accident. He
has also deposed that the deceased was his employee
and was being paid a salary of Rs.2000/- per month.
He has stated categorically that the contents of the
insurance claim form were not filled in by him but
by somebody else. The suggestion of the advocate
for the workman that the contents of the claim form
were read over to him, has been denied by respondent
No.6. The representative for the insurance Company
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had suggested in his cross-examination of this
witness that the claim form showing that the person
driving the vehicle at the time of the accident was
his friend, had properly been filled in. The
suggestion has been denied by the witness. He has
also stated that the surveyor of the insurance
company had sold the vehicle and paid an amount of
Rs.55,000/- to him. He has further denied the
suggestion put to him that the deceased was
driver and that he was not being paid any salary.
not his
7. The investigating officer of the insurance
Company i.e. the appellant herein was also examined.
He has stated that he had no material to indicate
that he was authorized to depose on behalf of the
Divisional Manager who has signed the written
statement. He has further conceded that there was
nothing on record to indicate that he was the
investigating officer who had filled in the claim
form. He conceded that there was no contention
raised in the written statement of the Insurance
Company to the effect that the deceased was the
friend of respondent No.6, the employer who was
insured.
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8. The Commissioner for Workmen’s Compensation
has, after assessing the evidence on record, held
that the deceased was a workman within the
meaning of the Workmen’s Compensation Act. It has
further been held that he was employed on a monthly
salary of Rs.2000/- and that he was driving the jeep
at the behest of the employer when he met with an
accident on 15.5.2001. The Commissioner has then
calculated
Workmen’s
the
ig compensation
Compensation Act
payable
by
under
taking
the
into
consideration the age of the deceased and the
relevant factor and has awarded Rs.2,11,790/- to
the claimants.
9. Mr.Singh appearing for the Insurance Company
submits that the Commissioner has drawn directly
contrary conclusions and inferences and, therefore,
the order is unsustainable. He submits that, on the
one hand the Commissioner had observed that the
claim form shows that the deceased was a friend, and
on the other, the Commissioner had held that he was
a paid driver of the employer. The learned advocate
then submits that the claimants or their so-called
employer should have brought on record some material
documents to indicate that there was an employer-
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employee relationship between the two. He submits
that although under the Motor Vehicles Act, 1988 the
Insurance Company cannot take any pleas which are
contrary to the pleading of the owner of the vehicle
without leave of the Court, under the Workmen’s
Compensation Act the insurance stands on the better
footing. He buttresses this contention by relying
on the judgment of the Supreme Court in the case of
National
Insurance
reported in (2006) 2 SCC 641.
Co. Ltd. v/s Mastan
The learned advocate
& anr.,
has then pointed out that the aforesaid claim form
had been signed by the respondent No.6 and that
indicates that the driver was a friend of the owner
of the vehicle. He submits that Sr.No.3 of the
claim form requires particulars of the driver at the
time of the accident. One of the particulars
required is, whether he was a paid driver or the
owner’s relative or friend. Instead of stating that
the driver was a paid driver, the respondent No.6
has chosen to describe the driver as his friend. He
therefore submits that such a claim on behalf of the
relatives of the deceased ought to have been
dismissed.
10. The learned advocate for the claimant submits
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that the employer had stepped into the witness box
and categorically asserted that the deceased was his
paid employee and, therefore, the Court had accepted
this evidence and had granted compensation. The
learned advocate further submits that there was no
reason for respondent No.6 to have conceded that the
deceased was his paid driver when respondent No.6
has also been saddled with payment of penalty,
compensation.
besides being jointly and severally liable to pay
He submits that there is no
perversity in this finding which merits any
interference from this Court.
11. The learned advocate for the respondent No.6
i.e. the owner of the vehicle, points out that the
entire form has been filled in with black ink,
whereas the signature of the owner is in blue ink.
He submits that the owner has deposed before the
Court that he had only appended the signature to a
blank form and that he was not aware of the contents
of the form. The learned advocate further submits
that there is no suggestion to the claimant that the
driver was a friend of the owner of the vehicle. He
also points out that the owner of the vehicle has
denied the suggestion put to him that the driver was
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his friend. He has also in his cross-examination
deposed that the contents of the claim form were not
filled in as instructed by him and that the officer
of the Insurance Company had only requested him to
sign the claim form.
12. After perusing the evidence and the judgment of
the Commissioner for Workmen’s Compensation, in my
appeal need
opinion, the judgment and order impugned in this
not be set aside. The evidence on
record establishes that the deceased was an employee
of the respondent No.6. He was a paid driver and
was driving the jeep in that capacity when he met
with an accident. Further more, although the claim
form shows that the driver has been described as a
friend of the owner, that description was filled in
by the officer of the Insurance Company as seen from
the deposition of the owner of the vehicle. There
is no material on record in the written statement
filed by the Insurance Company indicating that the
owner was not the employer of the deceased.
Moreover, when the owner has been made jointly and
severally liable to pay the compensation, there was
no need for him to admit that the deceased was his
employee without it being true. Besides, he has
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been made responsible solely, for paying penalty on
the compensation awarded.
13. In these circumstances, I find that the
Commissioner has appreciated the evidence on record
correctly and, therefore, there is no need to
interfere in the matter. Once it has been accepted
that the driver was a paid employee of the owner of
the vehicle
arising out
and
of
had
and
met
during
with
the
a fatal
course
accident
of his
employment, the Commissioner for Workmen’s
Compensation had no option but to grant compensation
in accordance with the Workmen’s Compensation Act.
15. Accordingly, the Commissioner has granted the
compensation and has directed the payment of penalty
and costs. There is no reason to differ from the
view taken by the Trial Court and hence the appeal
deserves to be dismissed.
16. Appeal dismissed. The amount deposited with
the Commissioner, including penalty, costs and
accrued interest, if any, shall be paid over to the
applicants.
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17. In view of dismissal of the appeal, Civil
Application No.1874 of 2003 does not survive and
stands dismissed.
…..
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