United India Insurance Company ... vs Ashok S/O Gulabrao Kale & Another
2016 Latest Caselaw 948 Bom

    211-J-FA-33-07                                                                              1/7


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                               NAGPUR BENCH, NAGPUR.

                                  FIRST APPEAL NO.33 OF 2007




                                                                
    United India Insurance Company Ltd., 
    Thr. its Assistant Manager,  




                                                               
    Nagpur Regional Office, Nagpur.                                ... Appellant 

    -vs-

    1.  Ashok s/o Gulabrao Kale,




                                                  
         Aged about 37 years, 
         Occupation : Driver,         
         R/o Main Road Lanji, 
         Tah-Lanji, Dist. Balaghat. 
                                     
    2.  D. M. Shashtri s/o Manohar Shastri,
         Prop. Of Shastri Brothers, 
         Railway Station Road, Balaghat, 
         Tah. & Dist. Balaghat.                                    ... Respondents.  
             

    Shri B. Lahiri, Advocate for appellant. 
    None for respondents. 
          



                                                  CORAM  : A. S. CHANDURKAR, J. 

DATE : MARCH 29, 2016

Oral Judgment :

This appeal filed under Section 30 of the Employees

Compensation Act, 1923 (for short, the said Act) raises the following

substantial question of law :

" Whether the Commissioner, Workmen's Compensation was justified in holding that there was an employer-employee relationship between the respondents without giving due weightage to the award passed by the Labour Court on 29th January, 2003 wherein it was held that there was no employer-

employee relationship between the parties and the said award had

211-J-FA-33-07 2/7

reached finality ? "

Facts giving rise to present appeal are that the respondent No.1

claims to have been serving as a driver on a vehicle owned by the respondent

No.2. According to the respondent No.1 on 30/12/1997 he was driving a

tanker owned by the respondent No.2 for fetching diesel from Bhilai. The

said vehicle met with an accident near Gondia resulting in the respondent

No.1 sustaining various injuries. According to respondent No.1 on account of

aforesaid accident, he became handicapped and suffered 40% permanent

disability. The respondent No.1 claimed that he was entitled for

compensation on account of injuries sustained during the course of his

employment. The tanker in question was insured by respondent No.2 with

the appellant Insurance Company. Hence respondent No.1 filed an

application under Section 10 of the said Act claiming compensation of

Rs.98,856/- from the owner of the vehicle and the Insurance Company.

2. The application was opposed by the Insurance Company on the

ground that the accident occurred due to negligence of the driver. It was

further denied that there was a relationship of employer-employee between

the respondent No.2 and the respondent No.1. No reply was filed by the

respondent No.2.

211-J-FA-33-07 3/7

3. Before the learned Commissioner, the respondent No.1 examined

himself below Exhibit-44. He also examined a doctor at Exhibit-94 to prove

his disability. No other evidence was led. The learned Commissioner after

considering the material on record came to the conclusion that the accident

occurred out of and in the course of employment. The respondent No.1 was

therefore granted compensation of Rs.98,870/-. The claim was liable to be

satisfied by the appellant. Being aggrieved, the present appeal has been

filed.

4. Shri B. Lahiri, the learned counsel for the appellant submitted that

in absence of the relationship of employer-employee between the respondent

No.2 and the respondent No.1, the Insurance Company could not be saddled

with the liability to pay compensation. He submitted that the respondent

No.1 had initiated proceedings before the Labour Court at Balaghat, Madhya

Pradesh under provisions of Industrial Disputes Act, 1948. In said reference

proceedings which were decided on 29/01/2003 (Exhibit-82), it was held by

the Labour Court that there was no relationship of employer-employee

between the said parties. He then submitted that the order passed by the

Labour Court at Exhibit-82 had attained finality and therefore the same was

binding on the respondent No.1. Therefore according to the learned counsel,

as the respondent No.1 was not a "workman" within the meaning of Section

2(i)(n) of the said Act as it then stood, the appellant could not have been

211-J-FA-33-07 4/7

saddled with the liability to satisfy the claim for compensation under Section

10 of the said Act. In support of his submissions, the learned counsel relied

upon the judgments of Honourable Supreme Court in Laxminarayana

Shetty vs Shantha and anr. 2002 (94) FLR 658 and Central Mine

Planning and Design Institute Ltd. vs. Ramu Pasi and anr. 2006-Vol.I

CLR I. It was therefore submitted the impugned judgment was liable to be

set aside.

5. The respondents though served have not entered appearance to

contest the appeal. However, with the assistance of the learned counsel for

the appellant, I have perused the records of the case. Having given due

consideration to the submissions as canvassed, I am of the view that the

appeal deserves to be allowed.

The evidence on record indicates that on 30/12/1997, when the

respondent No.1 was driving a tanker owned by respondent No.2, the same

met with an accident resulting in respondent No.1 sustaining various injuries.

The aspect to be examined is whether the respondent No.1 is entitled to be

compensated for the same under provisions of Section 10 of the said Act.

6. The accident in question occurred on 30/12/1997. The

expression "workman" as defined by Section 2(1)(n) of the said Act as it then

stood reads thus :

211-J-FA-33-07 5/7

"workman" means any person other than a person whose

employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business who is a

railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in an administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II or ......"

The aforesaid provisions of Section 2(1)(n) were thereafter

amended by Act 46 of 2000 with effect from 08/12/2000 and the words

"other than a person whose employment is of a casual nature and who is

employed otherwise than for the purposes of the employer's trade or business "

came to be omitted.

From the aforesaid provisions, it is clear that when the accident

occurred on 30/12/1997, the expression "workman" did not include a

person whose employment was of a casual nature. The said provisions have

been considered by the Honourable Supreme Court in Central Mine

Planning and Design Institute Ltd. (supra) and it has been held therein that

the said expression did not intend to cover a casual worker. Similar view has

been taken in Laxminarayana Shetty (supra) by observing that person doing

contractual work would not qualify as a 'workman' under the said Act.

The legal position is therefore clear that on the date of accident,

the respondent No.1 who was given a contract for driving a tanker for a

particular day cannot be treated to be a 'workman' under Section 2(1)(n) of

the said Act.

211-J-FA-33-07 6/7

7. The matter can be viewed from another angle. As per the order

dated 29/01/2003 passed by the learned Presiding Officer under provisions

of Industrial Disputes Act, 1948 (Exhibit-52), on 30/12/1997 as the regular

driver-employee of the respondent No.2 was not available, the respondent

No.1 was assigned the job of driving said vehicle on payment of Rs.500/-. In

said judgment it has been held that the respondent No.1 was not qualified to

drive the tanker in question and that he had been assigned the job of driving

the tanker as a stop-gap arrangement. It was therefore concluded that there

was no relationship of employer-employee between said parties under the

provisions of Industrial Disputes Act, 1948. As stated above, this

adjudication has attained finality. The adjudication by the Labour Court

therefore fortifies this position. These aspects however, have not been

considered by the learned Commissioner while deciding the application for

grant of compensation. The Commissioner has merely proceeded on the

basis that as the respondent No.1 was temporarily engaged in driving

vehicle, he was entitled to be compensated. This view is contrary to the legal

position stated herein above.

8. In view of aforesaid, the substantial question of law is answered

by holding that in absence of an employer-employee relationship between

the respondents, the learned Commissioner was not justified in holding the

appellant liable to pay compensation.

211-J-FA-33-07 7/7

9. Accordingly the following order is passed :

The judgment dated 19/10/2005 in W.C.A. No.1/99 is quashed

and set aside. It would be open for the respondent No.1 to proceed against

the respondent No.2 in accordance with law.

The first appeal is allowed with no order as to costs.

JUDGE

Asmita