{"id":234990,"date":"2011-03-22T00:00:00","date_gmt":"2011-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-in-the-case-of-on-22-march-2011"},"modified":"2018-10-12T01:16:25","modified_gmt":"2018-10-11T19:46:25","slug":"appearance-vs-in-the-case-of-on-22-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-in-the-case-of-on-22-march-2011","title":{"rendered":"Appearance : vs In The Case Of on 22 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance : vs In The Case Of on 22 March, 2011<\/div>\n
Author: H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/5004\/2007\t 2\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 5004 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.B.ANTANI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n============================================+=============\n\n\n \n\nDY.\nDIRECTOR, GUJARAT STATE LAND DEVELOPMENT CORPN. LTD & ANR\n \n\nVersus\n \n\nGANPATSINH\nDABHIBHAI PATEL \n\n \n\n===============================================================\n \nAppearance : \nMR\nHS MUNSHAW for Appellants. \nMR DIPAK R DAVE for\nRespondent. \n==========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\n HONOURABLE\n\t\t\tMR.JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\nDate\n: 28\/03\/2008 \n\n \n\n \n \n ORAL\nJUDGMENT<\/pre>\n
\tThis appeal is
\ndirected against the judgment and order dated 30.11.2006 passed by
\nthe Workmen Commissioner under the Workmen Compensation Act in
\nWorkmen Compensation Application No. 50 of 2000 by which the learned
\nCommissioner has directed the appellants to pay the respondent
\ncompensation of Rs.67,126-00 with 9% interest, penalty of Rs.33,563\/-
\nand costs of Rs.3500\/-.\n<\/p>\n
\tMr. Munshaw,
\nlearned advocate appearing for the appellants submitted that the
\nrespondent was not at all a regular or permanent employee of the
\nappellant Gujarat State Land Development Corporation [hereinafter
\nreferred to as the Corporation] and the respondent was working as a
\nbulldozer operator as a daily wager depending upon the availability
\nof work and funds. The respondent met with an accident on 18.04.2000
\nwhile repairing the bulldozer and he has suffered permanent
\ndisability to the extent of 22% as his left hand was crushed in the
\naccident.  The learned Commissioner ought to have considered the
\naforesaid fact before awarding compensation to the tune of
\nRs.67,126\/- to the respondent.  Learned advocate submitted that there
\nwas no employer-employee relationship between the appellant and the
\nrespondent and that fact was also ignored by the learned
\nCommissioner.  He further submitted that eventhough there was no
\ninstructions from the higher authorities, the respondent on his own
\nhas tried to repair the bulldozer and he met with the accident. He
\nfurther submitted that the learned Commissioner ought to have
\nappreciated that it was not part of the duty of the respondent and he
\nhimself was responsible for the accident, and, therefore, the learned
\nCommissioner ought not to have awarded the compensation as claimed by
\nthe respondent.  Learned advocate further submitted that even the
\nDoctor who assessed disability to the extent of 22%has not been
\nexamined and therefore also, the order passed by the learned
\nCommissioner suffers from infirmity and it requires to be quashed and
\nset aside.  Learned advocate emphatically submitted that the amount
\nof penalty to the tune of Rs.33,563\/- is on the higher side. He
\nsubmitted that it is true that discretion is given to the learned
\nCommissioner to award penalty, but as there was no relationship of
\nemployer-employee between the appellant and respondent, the amount of
\ncompensation as well as the amount of penalty imposed on the
\nappellant is required to be quashed and set aside.  Learned advocate
\nhas placed reliance on the deposition adduced by the respondent at
\nExh. 13, Dineshbhai Revandas Panchal, Ex. 23 who was working as Field
\nSupervisor with the appellant Corporation, Amit Ramanlal Pancholi
\nExh.24 who was working as Wheel Operator  with the appellant
\nCorporation in support of the submission that on a bare perusal of
\nthe deposition adduced by these witnesses, it becomes clear that the
\nrespondent was working as a daily wager and he, on his own, attempted
\nto repair the bulldozer, as a result of which he met with the
\naccident and suffered serious injuries.  Learned advocate submitted
\nthat in view of the overwhelming evidence adduced in the present
\ncase, the Commissioner has committed an error in awarding
\ncompensation to the tune of Rs.67,126\/- and penalty to the tune of
\nRs.33,563\/- to the respondent, and, therefore, the same requires to
\nbe quashed and set aside.\n<\/p>\n
\tOn the other
\nhand, Mr. Dipak Dave, learned advocate for the respondent submitted
\nthat there is no infirmity in the order passed by the learned
\nCommissioner. He submitted that there is no dispute about the fact
\nthat the accident in question took place on 18.04.2000 while the
\nrespondent was on duty, and, therefore, the contention raised by the
\nlearned advocate that there was no relationship of employer-employee
\nbetween the appellant and respondent requires to be rejected.  The
\nlearned advocate further submitted that section 3 of the Workmen’s
\nCompensation Act, 1923 [hereinafter referred to as the Act], which is
\nin respect of employer’s liability for compensation wherein
\nsub-section (1) provides that if personal injury is caused to a
\nworkman by accident arising out of and in the course of his
\nemployment, his employer shall be liable to pay compensation in
\naccordance with the provisions of this chapter.  It further provides
\nthat the employer shall not be so liable<\/p>\n
(a).\tin respect of
\nany injury which does not result in the total or partial disablement
\nof the workman for a period exceeding three days;\n<\/p>\n
(b).\tin respect of
\nany injury, not resulting in death or permanent total disablement
\ncaused by an accident which is directly attributable to-\n<\/p>\n
(i).\tthe workman
\nhaving been at the time thereof under the influence of drink or
\ndrugs, or<\/p>\n
(ii).\tthe willful
\ndisobedience of the workman to an order expressly given, or to a rule
\nexpressly framed, for the purpose of security the safety of workmen.\n<\/p>\n
\tLearned advocate
\nsubmitted that the case of the respondent would fall in category\n<\/p>\n
(ii), i.e.  willful disobedience of the workman to an order expressly
\ngiven, or to a rule expressly framed because in the present case,
\nthere was no express order given to the respondent not to do a
\nparticular work, and there was no  willful disobedience of an order
\nor instruction given to the respondent. He further submitted that the
\nrespondent, with bonafide intention, attempted to repair the
\nbulldozer which ultimately resulted in the accident and he suffered
\nserious injuries on his left hand.  Learned advocate submitted that
\neven on perusal of section 4 of the Act, it becomes clear that the
\namount which is awarded by the learned Commissioner is a measly
\namount of Rs.67,126\/- while as per section 4 of the Act, he was
\neligible to get an amount to the extent of Rs.90,000\/-, and,
\ntherefore, even on that ground, the award does not call for any
\ninterference by this Court. He submitted that it is true that the
\nrespondent has not filed any appeal for enhancement against the order
\npassed by the learned Commissioner but considering the fact that
\nsection 4 provides for compensation to the extent of Rs.90,000\/-, the
\npresent award does not call for any interference and the appeal
\npreferred by the appellant deserves to be dismissed.  The learned
\nadvocate has placed reliance on the following judgments in support of
\nhis submissions:\n<\/p>\n
(i)\t(2006) II SCC
\n692 ?  Jilla Sahakari Kendrya Bank Maryadit v\/s. Shahjadi Begum and
\nothers;\n<\/p>\n
(ii)\t(2005) 12 SCC
\n217 ?  Shyama Devi v\/s. Union of India and Another.\n<\/p>\n
\tIn the case of
\nJilla Sahakari Kendrya Bank Maryadit [supra], in paragraph 12, the
\nApex Court held that the definition of employer embraces within its
\nfold not only a person who employs another either permanently or on
\ntemporary basis but also those who are in control of the workman
\ntemporarily lent or let on hire to them by the person within whom the
\nworkman has entered into a contract of service.  Learned advocate for
\nthe respondent therefore submitted that the respondent was a workman
\nand there was employer-employee relationship between the appellant
\nand the respondent.\n<\/p>\n
\tIn the case of
\nShyama Devi [supra], the appellant’s husband was employed as a
\nswitchman at Rajhara Railway Station.  A group of anti-social
\nelements armed with deadly weapons trespassed the office of the
\nstation master and damaged railway property.  The deceased, after his
\nduty hours, reached his quarters but on hearing the commotion and
\nfinding that the office of the station master was attacked by a mob,
\nhe went out to pacify the mob, he sustained lathi-blow on his head
\nand ultimately died as a result of the said head injury.  The Apex
\nCourt held that the deceased was acting in the interest of the
\nemployer outside his duty hours. He was courageous enough to come out
\nof his quarters even after his duty hours to save railway property
\nand hence entitled to compensation. In the facts of the present case,
\nlearned advocate submitted that though the repairing work was not
\nentrusted to him, the respondent was acting in the interest of the
\nemployer and, therefore, the learned Commissioner has rightly awarded
\ncompensation to the respondent and it does not call for any
\ninterference in the appeal, and the appeal is liable to be dismissed.\n<\/p>\n
\t\tThis
\nCourt has heard Mr. Munshaw, learned Counsel of the appellant and Mr.
\nDave, learned advocate for the respondent, at length and in great
\ndetail.  This Court has also undertaken a complete and comprehensive
\nappreciation of all vital features of the case as well as the entire
\nevidence on record.   I have also perused the reasons assigned by the
\nlearned Commissioner while awarding compensation to the respondent to
\nthe tune of Rs.67,126\/-, the deposition adduced by both the parties
\nand produced on record of the case.\n<\/p>\n
\tThe
\nrespondent was working with the appellant Corporation as a  bulldozer
\noperator. The appellant sustained injuries on 18.04.2000 when he was
\non duty. Doctor has assessed disability of the respondent to the tune
\nof 22%.  The learned Commissioner has considered the depositions
\nadduced by  by the respondent at Exh. 13, Dineshbhai Revandas
\nPanchal, Ex. 23, Amit Ramanlal Pancholi Exh.24 and Rangitsinh
\nBalusinh Parmar Exh. 28 and after considering the same, the learned
\nCommissioner has come to the conclusion there was relationship of
\nemployer and employee between the appellant and the respondent and
\nthe accident took place during the course of employment and
\neventhough he was not working as a Mechanic, in a bonafide manner, he
\nmade an attempt to repair the vehicle and in the said process, he
\nsustained serious injuries on left hand. In view of the observations
\nof the Apex Court in the case of Shyama Devi [supra], whereby the
\nApex Court held that the deceased is entitled to compensation because
\nhe was acting in the interest of the employer outside his duty hours,
\nthe contention raised by the appellant has no merit.  The learned
\nCommissioner has, therefore, rightly come to the conclusion that
\ninjury was caused during the course of employment and there was
\nemployer-employee relationship between the appellant and the
\nrespondent.\n<\/p>\n
\tIt
\nhas been contended by Mr. Munshaw, learned advocate for the appellant
\nthat the respondent was working as a daily wager and not in the
\nregular employment of the appellant.  However, considering the
\ndeposition adduced by the respondent vide Exh.13  and the deposition
\nof Dineshbhai Revandas Panchal, Ex. 23 and Amit Ramanlal Pancholi
\nExh.24 it becomes clear that the respondent was working with the
\nCorporation as a bulldozer operator.  It has been strenuously
\ncontended on behalf of the appellant that the respondent was engaged
\nonly on contract basis for a particular season.  However, the
\nappellant could not produce any documentary evidence in support
\nthereof. On the contrary in the deposition of the aforesaid
\nwitnesses, it has been clearly stated that the respondent was working
\nas a bulldozer operator. Therefore, the learned Commissioner has
\nrightly held that the respondent falls within the definition of
\n‘workman’ as provided in section 2 (1) (n) of the Act, and,
\ntherefore, the contention raised by the learned counsel for the
\nappellant requires to be rejected and it is hereby rejected.\n<\/p>\n
\tThe
\naccident in question took place on 18.04.2000 and it occurred during
\nthe course of employment. In view of the observations of the Apex
\nCourt in the case of Jilla Sahakari Kendrya Bank Maryadit [supra] in
\nparagraph 12 and in view of the fact that the respondent was on his
\nduty and in the course of employment with the appellant when the
\naccident occurred, the contention raised by the appellant that there
\nwas no relationship of employer and employee between the appellant
\nand respondent required to be rejected, and the findings recorded by
\nthe learned Commissioner is hereby upheld.\n<\/p>\n
\tThe
\nthird contention raised by the learned advocate for the appellant is
\nthat the Doctor who had assessed the disability to the extent of 22%
\nhas not been examined.  Considering the provisions of the Act, the
\nlearned Commissioner has rightly held that there was no need to
\nexamine the expert to prove the disability.  It was also incumbent
\nupon the appellant to press for medical examination of the respondent
\nwho has sustained injuries. The appellant also failed to avail of
\nthat opportunity before the learned Commissioner and, therefore, the
\ncontention raised by the appellant that the Doctor was not examined
\nby the respondent has no merit, and is liable to be rejected.\n<\/p>\n
\tThus,
\nconsidering the overwhelming evidence on record of the case, even the
\namount of compensation awarded to the respondent to the tune of
\nRs.67,126\/- is a measly amount and considering section 4 of the Act,
\nthe respondent could have claimed compensation to the extent of
\nRs.90,000\/- if an appeal was preferred against the order passed by
\nthe learned Commissioner.   Be that as it may, the fact remains that
\nthe amount of compensation passed by the learned Commissioner does
\nnot call for any interference as the same is passed by the learned
\nCommissioner after going through the entire gamut of oral deposition
\nand documentary evidence. As regards the penalty awarded by the
\nlearned Commissioner, the learned Commissioner has rightly exercised
\nhis discretion and this Court is not inclined to interfere with the
\nsame.\n<\/p>\n
\tThat
\napart, proviso to section 30 of the Act provides that no appeal shall
\nlie against any order unless a substantial question of law is
\ninvolved in the appeal.  In the fact and circumstances of the present
\ncase, it cannot be said that the appeal involves a substantial
\nquestion of law.\n<\/p>\n
\tIn
\nview of the foregoing discussions, the appeal is liable to fail, and
\nis hereby dismissed.\n<\/p>\n
mathew\t\t\t\t\t\t\t[H.B.ANTANI,\nJ.]\n\n    \n\n \n\t   \n      \n      \n\t    \n\t\t   \u00a0\u00a0\u00a0\n\t   \n      \n\t  \t    \n\t\t   Top\n\t   \n      \n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance : vs In The Case Of on 22 March, 2011 Author: H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print FA\/5004\/2007 2\/ 10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5004 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-234990","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance : vs In The Case Of on 22 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appearance-vs-in-the-case-of-on-22-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance : vs In The Case Of on 22 March, 2011 - 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