Gujarat High Court
Nehaben Ayubbhai Bhatti vs Bhabhlubhai Jilubhai Vala on 8 December, 2025
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 326 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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NEHABEN AYUBBHAI BHATTI & ORS.
Versus
BHABHLUBHAI JILUBHAI VALA & ORS.
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Appearance:
MR MB PARIKH(576) for the Appellant(s) No. 1,2,3,4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/12/2025
ORAL JUDGMENT
1. The present First Appeal is filed by appellants
- original claimants under Section 30 of the Workmen's Compensation Act, 1923 (For short 'the Act') challenging the judgment and order dated 04.04.2017 passed by Workmens' Compensation Commissioner, Labour Court, Amreli in W.C.(Fatal) Page 1 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined Case No.1 of 2012.
2. Heard learned advocate Mr.M.B.Parikh for appellants-original claimants and learned advocate Mr.Yogi Gadhia for respondent No.2. Though served, none appeared for respondent Nos.1 and 3.
3. Brief facts are as under:-
3.1 The case of claimants in the claim application is that, deceased - Ayubbhai Ismailbhai Bhatti, was in the employment of opponent No.1 and was driving Scorpio Car bearing registration No.GJ-3AB-8451 owned by opponent No.1. On 27.05.2012, under the instruction of opponent No.1, deceased while driving the said Scorpio Car met with an accident due to the bursting of rear tyre. As a result of the said accident, deceased expired. A compliant was also registered at Page 2 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined Chalala Police Station. Panchnama of the place of accident and Inquest Panchnama together with the postmortem report, were carried out.
3.2 The legal heirs/representatives of deceased filed a claim application seeking compensation of Rs.8,54,280/- with interest @ 12% per annum coupled with penalty at 50% from opponents. Opponent No.1 appeared and filed a Written Statement at Ex.22.
Opponent No.2 - Insurance Company appeared and filed Written Statement at Ex.18. Opponent No.3, who is a subsequent transferee of vehicle, was joined during the pendency of application, who appeared and filed Written Statement at Ex.41. Claimant examined widow
- Nehaben Ayubbhai Bhatti at Ex.25 and also examined Ismailbhai Bhatti father of deceased at Ex.44. Opponent Page 3 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined No.1 filed Affidavit in lieu of Examination-in-chief at Ex.83 but did not remain present for Cross-examination and therefore, learned Commissioner discarded his oral deposition. After considering the evidence, learned Commissioner rejected the claim application. Being aggrieved and dissatisfied with the impugned judgment and order, appellants - claimants are before this Court.
4. Learned advocate for appellants has contended that, on the date of accident i.e. 27.05.2012, deceased was driving Scorpio Car bearing registration No.GJ-3AB-8451, owned by opponent No.1. The deceased was in the employment of opponent No.1 and was drawing salary of Rs.8,000/- per month. There was a relationship of employee and employer between deceased and opponent No.1. It is contended that, Page 4 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined upon instruction of opponent No.1, deceased was driving said vehicle on the date of accident towards Diu and rear tyre of Scorpio Car got burst resultantly, deceased lost control over the vehicle and car turned turtled. Deceased expired due to vehicular accident. 4.1 It is further contended that the death of employee is caused by an accident arising out of and in the course of his employment. It is contended that the learned Commissioner has committed an error in not considering the oral depositions of widow and father of deceased. During their Cross-examination, it is coming out on record that the deceased was in the employment of opponent No.1. It is also contended that except filing a Written Statement, opponent No.1 and 3 have not led any contrary evidence. It is also Page 5 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined contended that the statements recorded by Police from the widow and father of deceased, clearly establish a relationship of employee and employer between deceased and opponent No.1. It is contended that the vehicle in question was insured with opponent No.2- Insurance Company and policy covers the risk of a paid driver. It is further contended that the learned Commissioner has failed to appreciate that opponent Nos.1 and 3 were duty bound to pay compensation to claimants within a period of one month from the date the compensation it became due. Except above, no other submissions are made by learned advocate for appellants.
5. Per contra, learned advocate for respondent No.2 - Insurance Company has supported the judgment Page 6 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined and order and contended that the initial burden of establishing employee-employer relationship and the occurrence of accident is arising out of and in the course of employment has not been established by claimants and therefore, learned Commissioner has rightly rejected the application. It is further contended that, on 16.05.2012, the said Scorpio Car was sold to original opponent No.3- Varunbhai Vinubhai Sarvaiya. It is contended that, on the date of accident, opponent No.1 was not the owner of vehicle and therefore, the Insurance Company cannot be saddled with the liability for vehicle as on the date of accident opponent No.1 was not the owner of vehicle. It is contended that opponent No.3 was not insured of present Insurance Company. It is also contended that the claimants have failed to establish the income of deceased on the date Page 7 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined of accident, as different stands have been taken by claimants in the claim application and in the oral evidence with regard to income of deceased. 5.1 It is further contended that opponent No.1 in his Written Statement, has denied employee and employer relationship between deceased and opponent No.1. It is further contended that opponent No.3- subsequent purchaser of vehicle, also denied the relationship. As a matter of fact, it is the case of opponent No.3 in the Written Statement that the deceased was his friend, and had gone to Diu with his other friends in the said Scorpio Car. It is also contended by opponent No.3 in the Written Statement that the deceased was doing work of selling tyres and making punctures at Gujarat Tyres, Hira Moti Chowk, Page 8 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined Amreli. Therefore, deceased was not in his employment. Except above, no other submissions are made by learned advocate for respondent No.2.
6. I have considered the submissions of learned advocates for the parties and perused the record and proceedings. The question which is required to be answered is on the basis of material available on record. It can be seen from the record that applicants have stated that deceased was in the employment of original opponent No.1. Now the first question requires for consideration is whether deceased was in the employment of opponent No.1 and secondly whether the death occurred arising out of and in the course of employment. Law is settled that the initial burden lies upon the claimants to establish that there existed a Page 9 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined relationship of employer and employee between opponent no.1 and deceased and injury was caused in an accident arising out of and in the course of employment.
In the present case, there is no dispute with regard to the occurrence of accident on 27.05.2012 and there is also no dispute on the aspect that on the date of accident, deceased was driving Scorpio Car bearing registration No.GJ-3-AB-8451. Undisputedly, claimants have not led any evidence with regard to existence of relationship of employee and employer between deceased and original opponent No.1 and/or opponent No.3. There is no evidence with regard to drawing of salary by deceased from either opponent No.1 and/or No.3. It is pertinent to note that in the claim application, claimants have not stated that the death Page 10 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined which has occurred is arising out of and in the course of employment. What has been stated by applicants in the claim application is that deceased drove the Scorpio Car upon instructions of opponent No.1 and met with an accident. The contention of applicants that the deceased was in the employment of opponent No.1, has been specifically denied by opponent No.1 in his Written Statement. When there is a dispute of employer and employee relationship heavy burden lies upon the claimants to prove it. Mere averments made in the application and in the Examination-in-chief are not sufficient to establish a relationship of employee and employer. Establishing a genuine employer- employee relations is a basic requirement of any claim. Compensation is due if death occuring due to an accident arising out of an in the course of Page 11 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined employment. As observed by the learned Commissioner, claimants have failed to discharge the primary burden. In the cross-examination also, denial replies with regard to proof of relationship that a employee-empoyer have been given by claimants. Over and above existence of relationship that of employee and employer, second part of Sub-section (1) of Section 3 is also required to be established by claimants. The other limb of Sub-section (1) of Section 3 of the Act envisages that the accident must have occurred arising out of and in the course of employment. Section 3(1) of the Workmen's Compensation Act, is reproduced as under:-
"If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be sol liable-
(a) x x x x x x
(b) x x x x x x Page 12 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined
(i) x x x
(ii) x x x
(iii) x x x
7. The personal injury if caused to a workman by an accident arising out of and in the course of employment, an employer shall be made liable to pay compensation, if within the stipulated time, the employer does not deposit the compensation.
Therefore, to invoke the provisions of Sub-section (1) of Section 3 of the Act, over and above, the relationship of employee and employer, claimants must establish that the injury/death is by an accident arising out of and in the course of employment. If the death is not arising out of and in the course of employment, the provisions of the Act, does not apply.
8. In the present case, if the statement of Page 13 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined father of deceased recorded before the Police at Ex.58 is perused, the witness/father, states that the deceased was driving the vehicle of Varunbhai Vinubhai Sarvaiya
- opponent No.3 on the date of accident and deceased was travelling towards Diu with his friends on a pleasure trip. It is also the case of original Opponent No.3 - subsequent purchaser of vehicle, that deceased was his friend and the car was asked from him by deceased and his friends for a pleasure trip of Diu. The statement of widow recorded before the Police Authority also reiterates the said facts. Before the Police Authority, neither widow nor father of deceased stated that the death has occurred due to an accident arising out of and in the course of employment. It is not the case before Police Authorities that deceased was in the employment of opponent Page 14 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined No.1. In absence of any other material statements made by widow and father of deceased cannot be brushed aside and such statements can be considered as a corroborative piece of evidence in absence of any other reliable evidence, while considering an issue pertaining to applicability of Sub-section (1) of Section 3 of the Act. The findings of learned Commissioner further receives strength from the Written Statement of Opponent No.3 that deceased was doing the work of selling tyres and making punctures at Gujarat Tyres, Hira Moti Chawk, Amreli. This fact has not been denied by claimants at the time of leading evidence.
9. Considering the aforesaid facts, appellants have failed to point out any contrary material whereby this Court can entertain the present First Appeal and Page 15 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025 NEUTRAL CITATION C/FA/326/2018 JUDGMENT DATED: 08/12/2025 undefined disturb the findings of learned Commissioner. The appellants have also failed to establish any substantial question of law in the present First Appeal. Section 30 of the Act is attracted only in cases where the substantial questions of law are involved. Thus, in absence of substantial questions of law, present First Appeal lacks merit and the same is accordingly dismissed. Record and proceedings be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 16 of 16 Uploaded by MANOJ KUMAR(HC01092) on Mon Dec 15 2025 Downloaded on : Mon Dec 15 20:32:54 IST 2025