FA/544/2008 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 544 of 2008 With CIVIL APPLICATION No. 1534 of 2008 In FIRST APPEAL No. 544 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE COMPANY LTD - Appellant(s) Versus SOMABHAI KALABHAI GOHIL & 2 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, MR PH PATHAK for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/07/2008 ORAL JUDGMENT
1. Heard
learned counsel for the parties. The New India Assurance
Company-appellant herein-original defendant no.3 has preferred this
First Appeal being aggrieved and dissatisfied by the judgement and
order dated 03.10.2007 passed by the learned Workmen’s Compensation
Commissioner, WC Act, Labour Court, Kalol (hereinafter referred to as
ýSthe Commissionerýý) in Workmen Compensation Case No. 06/2004 on
the ground that the commissioner committed jurisdictional error in
making the award when the insured is R.K Fabricators and not
respondent no. 2 and when R.K Fabricators was not impleaded in the
Workmen Compensation Case No. 06/2004 and that the commissioner
committed jurisdictional error in entertaining the case when the
employer employee relationship between the respondent no.2 and
respondent no. 1 or respondent no. 3 and respondent no.1 was not
proved and further committed an error in considering the monthly
income of the respondent no.1 at Rs. 3000/- in absence of any
documentary evidence.
2. The
facts in brief deserve to be set out as under:
2.1 The
workman was discharging his duties under the direct supervision of
opponent no.1 and 2 and was drawing salary of Rs. 3000/- per month.
The opponent no.1 was the organisation-principal employer who had
engaged the respondent no.2-the contractor for carrying out certain
work and the workman was in the employment of respondent no.2.
During the course of the work on 17.02.2004, an accident occurred and
the 2nd, 3rd and 4th fingers of the
workman got crushed. The workman had to be admitted in an orthopedic
hospital and looking to his age i.e. 37 years, compensation of Rs.
97,940/- was awarded by the commissioner in Workmen Compensation Case
No. 6/2004 vide order dated 03.10.2007. Being aggrieved by the said
order, the present appeal is preferred.
3. The
main contention of Mr. Hasmukh Thakkar, learned advocate appearing
for the appellant is that even a cursory glance at the cause title
would indicate that R.K Fabricators is not a party and therefore the
commissioner ought to have appreciated this fact and no compensation
should have been awarded as the appellant had insured one R.K
Fabricators whereas the name on the cause title is shown as Rajesh
Punjabi – Labour Contractor. He has further submitted that in view
of the said fact the insurance company could not have been made
responsible as the said Rajesh Punjabi was not insured.
3.1 Mr.
Thakkar at the same time fairly admitted that the insurance company
was joined at the request of respondent no.2 and during the entire
proceedings the insurance company has not taken up this contention at
all and therefore for the first time this contention is being taken
up before this court.
3.2 Without
prejudice to the aforesaid contention, Mr. Thakkar has further
submitted that the allegation with regard to respondent no.2 being
approved contractor of respondent no.1 is also not proved and the
quantum of monthly salary has also not been proved by any documentary
evidence and therefore to that extent the award deserves to be
quashed and set aside.
4. Mr.
Pathak, learned advocate appearing for the respondent has submitted
that the contractor i.e. the respondent no.2 has not denied anywhere
that the workman was not getting Rs. 3000/- per month by way of
salary and in absence of such denial or any admission on the part of
the contractor is sufficient to accept the quantum of salary. He has
submitted that the appeal deserves to be dismissed.
5. This
court has considered the rival contentions of the parties. As
regards the contention about the insured being R.K Fabricators, Mr.
Pathak has vehemently submitted that this contention had never been
taken up before the commissioner to which Mr. Thakkar has candidly
admitted that it was never taken up and therefore this may not be a
contention warranting much dwelling upon by this court at this stage.
6. This
brings this court to the second contention being lack of documentary
proof with regard to the respondent no.1 being engaged by respondent
no.2 for carrying on labour work. The entire order of the
commissioner indicates that the work was being carried out at the
behest and at the instance of respondent no. 1 and that the workman
was in the employment of respondent no.2. The workman received
serious injuries resulting into disability to a certain extent and
therefore he was awarded the amount of compensation. The factum with
regard to the act of accident has been proved. The injuries
sustained by the workman has also been proved and the workman was in
the employment of the respondent was also proved before the Workmen
Compensation court. Therefore, this court is of the view that no
case is made out for interference in the above order. This appeal
fails and therefore is dismissed accordingly.
7. In
view of the order passed in First Appeal, no order in Civil
Application. Civil Application stands disposed of accordingly. Rule
is discharged.
(S.R.BRAHMBHATT,
J.)
Divya//