The National Insurance Co. Ltd. ... vs Smt. Tulsabai Wd/O. Ramkrushna ...
2017 Latest Caselaw 7288 Bom

                                           1                                      FA240.17.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                         FIRST APPEAL NO. 240 OF 2017


 APPELLANT             : The National Insurance Co. Ltd.,
                         through its Divisional Manager,
                         Division No. IV, Durga Sadan,
                         Balraj Marg, Dhantoli, Nagpur.

                                               VERSUS

 RESPONDENTS: 1] Smt. Tulsabai Wd/o Ramkrushna Talmale,
                 Aged 45 years, Occu. Nil.

                          2] Jitendra S/o Ramkrushna Talmale,
                             Aged about 25, Occu. Student,

                          3] Ritesh S/o Ramkrushna Talmale,
                             Aged about 23, Occu. Student,

                               All R/o Budhwari Peth, Umrer,
                               Tah. Umrer, District Nagpur.

                          4] M/s Sood Powertech Services,
                             Through its Proprietor, Shri Rakesh Sood,
                             R/o Plot No.11, Vaigaon Ghoturli,
                             Tah. Umrer, Dist. Nagpur. 

  ----------------------------------------------------------------------------------------------
            Mr. C. A. Anthony, Advocate for the appellant.
            Mr. Prakash Naukarkar, Advocate for respondent nos.1 to 3
            Mr. Amit Khare, Advocate for respondent no.4.
  ----------------------------------------------------------------------------------------------


                             CORAM : S. B. SHUKRE, J.

                             DATE     : SEPTEMBER 19, 2017.





                                        2                                  FA240.17.odt


 ORAL JUDGMENT


 1]               Heard Shri C. A. Anthony, the learned counsel for the

appellant, Shri P.D. Naukarkar, the learned counsel for respondent

nos.1 to 3 and Shri Amit Khare, the learned counsel for respondent

no.4.

2] This first appeal involves three substantial questions of

law. Hence, ADMIT.

3] The substantial questions of law to be decided in the

appeal are as follows :

1] Whether the finding recorded by the Labour Court, Nagpur in the impugned judgment and order on the question of existence of employer-employee relationship, is perverse ?

2] Whether the finding recorded by the Labour Court, Nagpur in the impugned judgment and order on the question of Insurance Company being not liable to pay compensation as risk of an unskilled labourer, working on the job of electric line fault fixing was not covered under the insurance policy, is perverse ?

                                       3                                FA240.17.odt


                   3]          Whether   the   Labour   Court,   Nagpur   has

committed serious error in not considering the place of accident, which resulted in death of labourer Ramkrushna, as the place not covered under the insurance policy ?

4] Shri Anthony, the learned counsel for the appellant -

Insurance Company submits that there have been some admissions

given by P.W.1 Tulsabai Talmale, which go to indicate that deceased

Ramkrushna was a labourer and that he had studied only up to 2 nd

standard and as such there could not have been existence of any

employer - employee relationship between deceased Ramkrushna

and respondent no.4 and that the Insurance Company could also not

be fastened with any liability to pay compensation for the loss

occurred on account of death of an unskilled worker, whose risk was

not covered under the insurance policy.

5] The learned counsel for the respondents submit that

there has been proper appreciation of the evidence, available on

record in this case, by the Labour Court and, therefore, the findings

recorded by the Labour Court on the aforesaid questions cannot be

said to be perverse.

                                       4                                   FA240.17.odt


 6]               In the present case, the claim application under Section

22 of the Employees Compensation Act, 1923 was filed by the

respondent nos.1 to 3/claimants being the dependents on deceased

Ramkrushna. It was their contention that deceased Ramkrushna, the

husband of respondent no.1 and father of respondent nos.2 and 3,

was working as labourer for the respondent no.4 and used to

perform various jobs relating to fixation of electrical faults of electric

lines of MSEDCL, on behalf of respondent no.4, who was a sub-

contractor of MSEDCL in Umred tahsil. They claimed that on

04.1.2013, deceased Ramkrushna was assigned the work of fixation

of some fault of an electric pole standing in the agricultural field of

one Shri Bokade, situated at Thana shivar. They submitted that at

about 1.30 p.m., deceased Ramkrushna climbed up on the electric

pole for removing fault at the instructions of the Lineman and the

Junior Engineer and while he was busy performing his job, he

received a severe electric shock, which resulted in his sustaining burn

injuries. They submitted that deceased Ramkrushna died of those

injuries at the spot of the incident. He was shifted to the Rural

Hospital, Umred where the doctor attending him declared him brought

dead. The post mortem examination performed on the dead body

5 FA240.17.odt

disclosed the severe burn injuries sustained by deceased being the

probable cause of his death. They also submitted that deceased

Ramkrushna was getting salary of Rs.7,000/- per month from the

employer - respondent no.4.

7] This claim application of the claimants was resisted by

the respondent no.4 - employer, who did not deny that deceased

Ramkrushna was under his employment. He only submitted that

deceased Ramkrushna was not a 'Workman' within the definition of

the Workmen's Compensation Act, 1923. He also submitted that the

accident occurred only due to negligence shown by deceased

Ramkrushna in attending to his assigned work, as he did not wear

the necessary safety gear and guard.

8] The appellant herein, which was non-applicant no.2 in

the claim case before the Labour Court, also contested the claim case.

According to it, there was no documentary proof produced on record

to show that deceased Ramkrushna was the employee of respondent

no.4 - employer, original non-applicant no.1, and that he was

drawing salary of Rs.7,000/- per month. It was also submitted that

since deceased Ramkrushna was only assigned the job of

6 FA240.17.odt

maintenance, fixation of a fault on the electric pole, which resulted

in the accident, was beyond the scope of his duty as an employee of

respondent no.4 - employer and therefore, the Insurance Company

was not liable to pay any compensation. It was also submitted that

deceased Ramkrushna was not a skilled worker and therefore, the

Insurance company was exonerated from its liability to pay any

compensation.

9] On merits of the case, the Labour Court found that as

the employer, respondent no.4 herein, did not specifically deny the

contention that deceased Ramkrushna was his employee at the time

of the accident and that there was no other evidence produced on

record by the appellant - Insurance Company to prove its contention

that deceased Ramkrushna was not the employee of respondent no.4,

the fact of existence of employer - employee relationship between

the respondent no.4 and deceased Ramkrushna was proved in a

reasonable manner. It also found that the deceased died while

performing job assigned to him by his Lineman and Junior Engineer

and thus, occurrence of his death had a direct nexus with the scope

of the work that deceased had been given by his employer.

                                     7                                 FA240.17.odt


 10]              On going through the evidence available on record, I do

not think that any perversity in the findings so recorded by the

Labour Court could be noticed in the instant case. The respondent

no.4 examined himself and it is seen from his evidence that he has

never asserted that deceased Ramkrushna was not his employee. In

his examination-in-chief, his emphasis has been upon the fact that

deceased Ramkrushna himself was negligent in carrying out his job.

During the course of his cross-examination taken on behalf of

respondent nos.1 to 3 / claimants, he admitted that deceased

Ramkrushna was not responsible for his death and that it were the

Lineman and Junior Engineer, who were to be faulted with. Similar

admission has been given by him during the course of his cross-

examination taken on behalf of the appellant - Insurance Company.

Such an evidence of respondent no.4 together with his failure to

specifically deny existence of relationship as employer - employee

between himself and deceased Ramkrushna, would suggest that

respondent nos.1 to 3 / claimants have reasonably succeeded in

proving the facts that deceased Ramkrushna was the employee of

respondent no.4 at the time of the accident and that he was

performing a job, which was well within the scope of his work. This

8 FA240.17.odt

would lead me to answer the first substantial question of law in the

negative.

11] It is submitted by the learned counsel for the appellant

that the first witness of the claimants, namely Smt. Tulsabai Talmale

has admitted that deceased Ramkrushna was only a labourer and

had studied up to 2nd standard, meaning thereby, he had not

acquired any skill for performing any electrical job. True it is. Such

admissions are indeed there in the evidence of Smt. Tulsabai, but one

also has to take into consideration the case of the employer of

deceased Ramkrushna in order to appreciate the effect of these

admissions. The respondent no.4, the employer of deceased, says

that deceased Ramkrushna was engaged by him as a labourer and

that he also admits that on the fateful day, he had climbed up the

electric pole because that was the job assigned to him by the

Lineman and the Junior Engineer. The person, who is a labourer,

would always perform the jobs which are asked to be done by his

superiors. In the present case, admittedly, the Lineman and the

Junior Engineer were the superiors of deceased Ramkrushna and,

therefore, what was done by deceased Ramkrushna was only

9 FA240.17.odt

complying with the directions given to him by his superiors and as

such, I would say that fixation of a fault on the electric pole under

the supervision of the Lineman and the Junior Engineer was

something, which was directly within the scope of the work of

labourer. As such, I do not find that deceased being an untrained

worker and a labourer, was acting beyond the scope of his work.

The argument of the learned counsel for the appellant - Insurance

Company made in this regard cannot be accepted and is rejected. It

would then follow that the findings recorded by the Labour Court

that the deceased, an unskilled worker, did not act beyond the scope

of his work and so his risk was covered, cannot be found at fault and

therefore, the second substantial question of law is also answered in

the negative.

12] Now, what remains is the third substantial question of

law. Although this substantial question of law has been framed, I

must say it owes no foundational basis in the pleadings of the

appellant. If, one takes a look at the appellant's pleadings, as

elaborated in its written statement filed before the Labour Court, one

would find that the appellant has not taken any specific plea on this

10 FA240.17.odt

count. The appellant has not pleaded anywhere in the written

statement that the place of accident was such as was beyond the area

covered under the insurance policy at Exhibit U-26. The learned

counsel for the appellant has invited my attention to the insurance

policy at Exh.U-26 in order to support his argument as to how the

insurance policy disclosed a limited area within which it was to

operate, for covering the risks mentioned therein. The argument

hardly impresses me. In the insurance policy, there is a mention

about work details being the work of mechanical and civil work at

WCL at Umred. I must say, these work details pertain to the policy

holder, whose trade has been shown to be that of a contractor. The

reason being that these work details appear below the column 'Trade'

of the policy holder. If it were not so, these work details would have

been specified as indicating the area under coverage of the insurance

policy, but that is, however, not the case.

13] So, all in all, I find that there is neither a pleading taken

about the place of accident being beyond the area covered by the

policy nor the policy at Exh.U-26 shows that it is restricted to a

particular area. To make the things worse for the appellant, nobody

11 FA240.17.odt

has been examined by the appellant to prove its point that this policy

did not cover the place where the accident took place in the instant

case. This would call for drawing of an adverse inference against the

appellant - Insurance Company and it would be that it did not

examine any witness in this regard because the insurance policy did

not specify the area covered by it.

14] The result of the above discussion would be that there is

no error committed by the Labour Court in not considering the area

of coverage of the insurance policy, basically it being not there in the

insurance policy. The third substantial question of law is answered

accordingly.

15] In the result, I find no merit in this first appeal. The first

appeal deserves to be dismissed and it accordingly stands dismissed

with costs.

The respondent nos.1 to 3 / claimants are permitted to

withdraw the amount deposited with the learned Commissioner.

JUDGE

Diwale