M.S.E.D.C.L. Thro. ... vs Puranbai @Shantabai Govind ...
2017 Latest Caselaw 6585 Bom

                                  1                        FA 1330/2016

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                    FIRST APPEAL NO.1330 OF 2016 
                                WITH 
                  CIVIL APPLICATION NO.2507 OF 2014


  1.       M.S.E.D.C.L. Through its Superintending
           Engineer, Nava Mondha, Nanded,

  2.       M.S.E.D.C.L. Through its Executive
           Engineer, Rural Area, Vasant Nagar,
           Opp. Shahu Vidyalaya, Nanded.   ..  APPELLANTS 
                                  (Ori.Resp.Nos.1 and 2) 

                   VERSUS

  1.       Puranbai @ Shantabai Govind Julewad
           Age : 36 years, Occu.:  Household
           R/o Mugat, Tq. Mudkhed, Dist. Nanded

  2.       Avinash s/o Govind Julewad
           Age : 14 years, Occu.: Education
           U/G of his natural mother, Resp. No.1.

  3.       Ankush s/o Govind Julewad
           Age :  6 years, Occu.:  Education 
           U/G of his natural mother, Respo. No.1.
                                           
                                       ..Orig. Claimants.
  4.       Suresh Shelke
           Age :  37 years, Occu.: Jr. Engineer,
           M.S.E.D.C.L. R/o Mudkhed,
           Dist. Nanded.
                                       ....RESPONDENTS. 
                             (Ori.Claimants & Resp.No.3)

                                -----
  Mr. Dhananjay Deshpande, Advocate for Appellants;
  Mr. Mukund P.Ambekar, Adv. for Respondent Nos.1 to 3;
  Mr. Avishkar S.Shelke, Adv. For Resp.No.4(Absent)




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                                       2                        FA 1330/2016

                                   -----
                               CORAM :  P.R.BORA, J.

   
  RESERVED ON : 29
                   th
                       June, 2017
                                 
   
  PRONOUNCED ON:29
                     
                   th
                       August, 2017
                                   
                                   
  JUDGMENT:

1) Appellants have filed the present appeal

against the judgment and award dated 9th December,

2013 passed in WCA No.29/2008 decided by the

Workmen's Compensation Commissioner, at Nanded.

2) Respondent Nos.1 to 3 had filed the

aforesaid application, seeking compensation under

the provisions of the Workmen's Compensation Act,

(for short, the said Act) on account of death of

Govind Julewad, alleging the same to have been

caused during the course of his employment with

Maharashtra State Electricity Distribution

Company Ltd. (for short, MSEDCL) i.e. present

appellant. It was the contention of Respondent

Nos. 1 to 3, who are hereinafter referred to as

claimants, that while removing the cement

electric pole from the field of one Dhaknikar for

installing the same in the field of Ramchandra

3 FA 1330/2016

Sambhod, the said pole fell on the person of

Govind and in the accident so happened, he died

on the spot. It was the further contention of

the claimants that he was carrying out the work

of removing the pole on instructions of one

Suresh Shelke (original Respondent No.3), who is

Respondent No.4, in the present appeal, working

as Junior Engineer in MSEDCL.

3) The application was resisted by the

appellants. The appellants had denied that

deceased Govind was their employee or that he was

in any way working for them. It was, therefore,

the contention of the appellants that the

application filed under the provisions of the

Workmen's Compensation Act, was not maintainable.

It was specifically contended by the appellants

that deceased Govind was not working as a workman

of either present appellants (original Respondent

Nos. 1 and 2) or Respondent No.3 (present

Respondent No.4). It was submitted that since

the MSEDCL has its own work force, there was no

4 FA 1330/2016

necessity for engaging any private worker nor it

was a practice to appoint anybody as a labour for

doing the MSEDCL work. It was also contended

that Ramchandra Sambhod had privately assigned

the said to Jankiram and deceased Govind and

while carrying out the said work at their

instructions, the accident happened.

4) The leaned Workmen's Commissioner, after

having assessed the oral as well as documentary

evidence brought on record before him, held the

claimants entitled for the compensation of Rs.

3,11,970/- with interest thereon @ 12% p.a. from

the date of the accident till its realization

jointly and severally from the present

appellants. Aggrieved by, the present appeal has

been filed by the appellants.

5) Shri Dhananjay Deshpande, learned

Counsel appearing for the appellants, assailed

the impugned judgment and award on various

grounds. The learned counsel submitted that

5 FA 1330/2016

though it was the specific defence raised by the

appellants that deceased Govind was not their

employee and was not working for them and though

the claimants did not bring on record any cogent

and sufficient evidence to show that deceased

Govind was in the employment of the appellants

and the alleged work was assigned to him by the

appellants, the Commissioner has erroneously held

the appellants liable to pay the amount of

compensation to the claimants holding that

deceased Govind suffered the death while

performing the work of the appellants. The

learned Counsel further submitted that the

Commissioner has failed in appreciating that

except the oral version of claimant No.1 that one

Suresh Shelke was allotting the work of MSEDCL to

deceased Govind and used to take him for such

work since last 2-3 years, there was no other

corroborative evidence to support the said

version of claimant No.1. The learned Counsel

further submitted that it is improbable that any

Junior Engineer of MSEDCL will make the payment

6 FA 1330/2016

from his own pocket that too for years together.

The learned counsel submitted that when it was

the case of the claimants that since last 2-3

years he was regularly working with MSEDCL as a

casual worker, it was possible for them to call

for the necessary record so as to prove that

deceased Govind was being paid the wages from

MSEDCL for the daily work, which he used to

perform. The learned Counsel submitted that had

there been any such evidence, it would have been

said that there was some justification for the

Commissioner to hold that deceased Govind died

while performing the work of the appellants.

However, when the claimants did not bring on

record any such evidence, the Commissioner must

have rejected the application filed by the

claimants. The learned Counsel, therefore,

prayed for setting aside the impugned judgment

and award and consequently to dismiss the

application against the appellants.

  6)               Shri   Ambekar,   learned   Counsel   appearing 





                                   7                       FA 1330/2016

for the claimants, supported the impugned

judgment and award. The learned Counsel

submitted that the evidence on record was

sufficient to hold the claimants entitled for the

compensation under the provisions of the

Workmen's Compensation Act. The learned Counsel

submitted that the claimants have fully

established that deceased Govind suffered the

death while carrying out the work connected with

the activities of the appellants. The learned

counsel further submitted that since no

substantial question of law is involved, the

appeal, as has been filed by the appellants, is

not maintainable. He, therefore, prayed for

dismissal of the appeal.

7) I have carefully considered the

submissions made on behalf of the appellants as

well as the respondents. I have also perused the

impugned judgment and award and the evidence on

record. From the material on record, it is not

in dispute that deceased Govind when was removing

8 FA 1330/2016

the M.S.E.D.C.L's cement electric pole from the

field of Narayan Dhaknikar for installing the

same in the filed of Ramchandra Sambhod along

with one Jankiram, the said pole fell on him and

in the accident so happened, he suffered the

death on the spot. According to the claimants,

deceased Govind was carrying out the work of

removal and installation of the pole on

instructions of Suresh Tukaram Shelke, Junior

Engineer of MSEDCL. As against it, as has been

deposed by Suresh Tukaram Shelke in his evidence

affidavit at Exh.C-5, one Ramchandra Gangaram

Sambhod has privately allotted the said work of

installing the cement electric pole in his field

to Jankiram and deceased Govind and while

carrying out the said work, deceased Govind

suffered the death in the field of Narayanrao

Dhaknikar. It was, therefore, the further

contention of said Tukaram Shelke that death of

Govind cannot be said to have been caused while

performing the work for MSEDCL.

                                     9                         FA 1330/2016

  8)               Shri   Shelke,   in   his   cross-examination 

has stated that, the Distribution Company never

used to engage any outside labour for the work of

erection of pole, meaning thereby that such work

has to be necessarily carried out only by the

workers employed by Distribution Company and by

none else. It is the case of the appellants

themselves that Ramchandra Sambhod, on his own,

has privately engaged Jankiram and deceased

Govind to carry out the work of installation of

cement electric pole in his field. It is thus

evident that according to the case of the MSEDCL,

Ramchandra Sambhod was illegally getting the said

work done by said Jankiram and deceased Govind.

There is no dispute that cement electric pole or

the electric wires/cables to be laid from the

said pole, were the properties of MSEDCL. As

noted above, the work of installation of electric

pole has to be exclusively done by MSEDCL itself

and cannot be alloted to any private person or

agency.

                                      10                         FA 1330/2016

  9)               The   question   arises   when   such   was   the 

defence of the appellants, what action did they

take against Ramchandra Sambhod or Narayan

Dhaknikar for privately carrying out the said

work and for illegally and unauthorisedly dealing

with the property of MSEDCL.

10) Suresh Shelke in his cross-examination

has candidly admitted that MSEDCL did not file

any complaint against Narayan for his

unauthorized work of shifting the pole. It was

further stated by Shri Shelke in his cross-

examination that he had reported about the

unauthorized work of Narayan to his superior.

However, said Shelke did not file on record a

copy of the said communication made by him with

his superior, though he has stated that he can

file it on record. It has to be further stated

that during the course of hearing of the

application before the learned Commissioner,

nothing was brought on record by the appellants

to show that any such action was taken by them

11 FA 1330/2016

against either Narayan Dhaknikar or Ramchandra

Sambhod or Jankiram. In the present appeal also,

no such document has been placed on record or no

such information is provided to substantiate the

contention raised by Suresh Shelke in his

evidence before the trial court that he has

reported the matter to his superior officer for

the unauthorized work carried out by Narayan. In

absence of any such evidence, adverse inference

was liable to be drawn against M.S.E.D.C.L. It

has utterly failed in substantiating the plea

raised by it that the alleged work was being done

by deceased Govind as a private employee engaged

by Ramchandra Sambhod and not on instructions of

officer of MSEDCL. It has to be, therefore,

presumed that the work, which deceased Govind was

carrying out, when the alleged accident happened,

was being done by him on instructions of the

officers of MSEDCL and in connection with the

business of MSEDCL.

  11)              The   learned   Tribunal   has   recorded   such 





                                  12                        FA 1330/2016

conclusion by raising such presumption in favour

of the claimants. It does not appear to me that

the learned Commissioner has committed any error

in drawing such presumption and recording such

finding. Moreover, the fact, as has been deposed

by Suresh Shelke in Para 9 of his evidence

affidavit that Ramchandra Sambhod in his

statement recorded on 3rd March, 2008 (Exh. C-13),

has stated that, he has allotted the work of

installation of cement electric pole to his two

private servants, viz. Jankiram and Govind, also

cannot be accepted. I have carefully read the

statement of Ramchandra Sambhod at Exh. C-13,

which discloses that when he had been to the

office of MSEDCL at Nanded, one Shri Choudhari

had provided him the electric line wire and the

allied material for installation of electric

connection in his field and the same, was stored

by him at his house. Said Ramchandra has further

stated that in January 2008, when he had been to

the unit office at Mudkhed and had met the

lineman, Shri Gurutwad, he had promised him to do

13 FA 1330/2016

his work within next few days. Ramchandra has

further deposed that thereafter on 26th February,

2008, Jankiram, Govind and Gurutwad came to his

field and told him that the work of installation

of pole is to be carried out and thereafter the

alleged accident had happened. Gurutwad is

admittedly a lineman in MSEDCL at their Mudkhed

unit. Copy of the statement dated 3rd March, 2008

has been filed by the appellants themselves and

the same has been attested also by the officer of

the MSEDCL and, therefore, the same has been

marked as Exh.C-13. It is not the case of the

appellants that the fact stated by Ramchandra

Sambhod that on 26th February, 2008, lineman

Gurutwad also had been to his field along with

Jankiram and Govind, is false or incorrect. When

the statement at Exh. C-13 is relied upon by the

appellants, i.e. original respondents; the same

has to be read as a whole. From the said

statement it can be reasonably inferred that

Jankiram and deceased Govind were asked to carry

out the work by said lineman Gurutwad.

                                      14                        FA 1330/2016

  12)              After   having   considered   the   facts,   as 

aforesaid, It does not appear to me that, the

Tribunal has committed any error in holding the

death of deceased Govind to have been caused

while performing the work of MSEDCL. In the

circumstances, even if there is no evidence from

the side of the claimants to show or to prove

direct relationship of deceased Govind with the

principal employer as their workman or employee,

when from the evidence on record it has been

sufficiently proved that deceased Govind suffered

the death during the course of the performance of

work or duties for MSEDCL, the MSEDCL cannot

escape from its liability to pay the compensation

to the legal heirs of deceased Govind for his

accidental death.

13) In the matters of workmen compensation

what is of paramount importance is whether the

person is engaged for the purposes of the trade

or business of the principal employer. Such a

person can even be a casual employee alike

deceased Govind. As earlier stated, if the

15 FA 1330/2016

accident occurs while such person is engaged for

the service of the principal employer or when he

is occupied in the performance of the work of the

principal employer, it has to be held that the

accident has occurred during the course of the

employment and the principal employer is liable

to pay compensation to the legal heirs of the

deceased.

14) For the reasons stated above, I do not

see any reason for causing interference in the

impugned judgment and award. The appeal being

devoid of any substance, deserves to be dismissed

and is accordingly dismissed, however, without

any order as to costs. Pending civil

application, if any, stands disposed of.

15) The amount deposited by the appellants,

if any, be released in favour of the original

claimants after expiry of the period of eight

weeks.

(P.R.BORA) JUDGE bdv/ fldr 28.8.17