Kamlabai Wd/O Bindadin Parasram ... vs Sohanlal S/O Amriksingh Arora
2004 Latest Caselaw 740 Bom

JUDGMENT

Anoop V. Mohta, J.

1. The present appeal has been preferred under Section 30 of the Workman's Compensation Act, 1923 (for short 'the Act') by the original applicant/appellant herein, against the original non-applicant-employer/respondent herein, and thereby challenged the judgment and bill of cost dated 22-9-1986, passed by the Commissioner. Workmen's Compensation, Chandrapur, in W.C. Case No. 14(11)/81, whereby, the application was dismissed. The Commissioner, after considering the material, as well as, evidence on record, came to the conclusion that at the relevant time Mr. Bindadin, the husband of appellant No. 1 and father of original applicant No. 2, was not workman of the employer, one Mr. Sohanlal Amriksingh Arora, respondent herein. It was also declared that the original applicant No. 3 was not dependent of said Bindadin. As he was not in the employment and, in the accident, which took place on 15-4-1979, by the use of truck No. CPC 8260 owned by the respondent, 4 persons including Bindadin died. Therefore, the appellants, legal representatives of the said Bindadin, were not entitled for such application and relief under the provisions of the Act.

2. The Workmen's Compensation Act, defines 'workman' under Section 2(n), at the relevant time as under :

"Workman means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of employer's trade or business) who is:-

(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 [9 of 1890], not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed on monthly wages not exceeding five hundred rupees in any such capacity as is specified in Schedule II. Whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing but does not include any person working in the capacity of a member of Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."

The Apex Court has already declared in , Mackinnon Mackenzie and Co. Pvt. Ltd. vs. Ibrahim Mahommad Issak, as under:

"In the case death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it. Lord Birkenhed L.C. in Lancaster vs. Blackwell Colliery Co. Ltd. 1918 W.C. and 1R 345 observed :

"If the facts which are proved give rise to conflicting inferences of equal degrees or probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour."

3. We have gone through the evidence led by the parties, and after going through the same, I also find that the appellant failed to prove the basic contention of existence of relationship of employer and employee, to claim compensation under the Act, in question. The finding given by the learned Commissioner, based on material on record, as well as, evidence led by the parties, I am reluctantly declined to interfere with the order passed by the Commissioner. This is very unfortunate case that in spite of the death of said Bindadin, the Court is unable to award compensation under the provisions of the Act. There is nothing to show whether such application or any such applications had been filed under any other provisions. Even after detail scrutiny of the evidence, the counsel appearing for the appellant was unable to trace out any evidence to support his case of existence of relationship of employer and employee, as referred above. The facts itself shows that on 15-4-1979, the truck No. CPC 8260 met with an accident near Lohara Village and four persons including Bindadin died in the accident. The truck was carrying and/or transporting coal. The respondent was the owner of the said truck. The Bindadin was never in the employment of the respondent. There was no material and documents placed on the record, and/or even suggestion to the effect that he was in actual employment of the respondent. The application itself suggests that the said Bindadin was piecerated workman and used to work on daily basis to load and unload the said coal truck. The respondent owner never used to employ Bindadin, as daily rated or casual worker for the said work. The driver of the respondent one Mr. Shantish @ Satu s/o Shamrao Cristain, used to get the gang of workers to load and unload the particular truck. The said gang or team used to get Rs. 40 to Rs. 50. However, evidence was led by Kamlabai to the effect that the weekly wages of Bindadin was Rs. 175/- to Rs. 200/- per week, by loading and unloading such truck. As observed above, the learned Judge found that there was no satisfactory evidence and material on the record to hold that at the relevant time Bindadin was in the employment of the respondent or its driver Satu. There was no direct connection and/or relationship between the said deceased Bindadin and respondent. The said Bindadin, as record and evidence shows was entrusted the work of labourer or a coolie for loading and unloading of the charcoal, at the fixed amount, as per trip. The said Satu, driver, used to disburse the money at the respective rate, for per trip, to the gang of labourers. The said driver Satu, used to engage such labourers from time to time without the knowledge of the respondent. The said driver's duty was to load and unload the charcoal from one place to another. There is no material on record to show that said Satu used to engage Bindadin regularly, on every trip and all the times.

4. Even, as per the definition of workman, existing at the relevant time, unfortunately it is difficult to accept that the said deceased was workman as contemplated within the definition of workman under the Act. As observed above, and as held in Makinnon (supra), by the Apex Court the appellant unfortunately failed to prove that the deceased was a workman within the definition, and further the accident arose out of the employment, as well as, in the course of the employment. Even if we try to stretch the definition of workman, still in the facts and circumstances of the case, it is difficult to accept that the deceased Bindadin was in the employment and/or working with the respondent, owner of the truck.

5. The learned Advocate appearing for the respondent relied on , Rampeary Dosadin vs. J. Bhattacharyya and Company and placed reliance on the following observations made in para No. 4 of the said reported judgment, which is reproduced as under :

"4. ............

The finding arrived at by the Commissioner, that the deceased, even if he was employed under the respondents, was only employed in loading and unloading the goods seems to me to be the only finding which is consistent with the proved facts of the case. That being so, he did not come under clause (1) of the Schedule, as the Commissioner rightly held."

and further contended that, the deceased Bindadin who was in the employment for loading and unloading the truck cannot be said to be the workman, within the definition and meaning as contemplated under the Act, and therefore, the applicant's application was rightly rejected, for want of specific evidence in support of the employment relationship.

5A. In view of the above, as there is no perversity and the reasons are based on material evidence on record, and also based on then existing provisions of the Act, I am declined to interfere with the order passed by the learned Commissioner.

6. Accordingly, the appeal is dismissed, with no order as to costs.