Bombay High Court
M/S Uma Enterprises, Thr. Prop. ... vs Smt. Vijay Wd/O Prakash Tajnekar ... on 9 January, 2021
Bench: S. M. Modak
1 CAF 30.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No.58/2020
(Uma Enterprises and another V Smt. Vijaya Tajnekar and another)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri S.D. Shukla, Adv for appellants.
Shri M.Y. Wadodkar, Adv for resp. nos.1 and 2/Caveator.
CORAM : S.M. MODAK, J.
DATE : 09-01-2021.
First Appeal No.58/2020
The non applicants have filed caveat. The appellants
have served through learned Advocate who has filed the Caveat.
Now the non applicants have appointed new advocate and yet he
has to receive the copy of the appeal memo. In view of that the
issue of admission of the appeal as contemplated under proviso to
Section 31 of the Employee's Compensation Act, 1923 (for short
'the Act of 1923'), is kept open and to be decided later on.
Civil Application (F) No.30/2021
Heard learned Advocate Shri Shukla for the applicant/
employer and learned Advocate Shri M.Y. Wadodkar for the non
applicants/legal representatives of the deceased.
2. The learned Commissioner under the Employee's
Compensation Act has granted compensation to the tune of
4,38,260/- along with the other benefits. I am aware that any of
the observations made herein will also be considered when the
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2 CAF 30.2021
issue of admission of the appeal will be decided. So with that
limitation I will express that much which are required here. What
I find there is no dispute that the deceased expired in the factory
premises itself. There is a dispute about the cause of death.
According to the claimants, it was due to electrocution. Whereas,
according to the employer, it was on account of injuries sustained
to the deceased due to fight and on account of intoxication.
3. According to the learned Advocate for the appellant,
claimants have not proved basic ingredients relating to
entitlement to compensation. According to him, merely proving
the death inside the factory is not sufficient but it is further to be
proved that the cause is attributable to some happenings in the
factory premises. According to him, the learned Commissioner has
misunderstood the arguments. The emphasis of the appellant was
not as per the contents of clauses (b) (i) to sub-section (1) of
Section 3 of the Act of 1923. But it was on the fulfillment of the
ingredients about entitlement to compensation. Second limb of
argument is that the age is not proved and the manner of
compensation is not proper. He read over some of the
observations and the judgments cited before the learned
Commissioner.
4. As against this it is submitted on behalf of the
claimants that the death at the factory premises itself is sufficient
to attract the provisions of the Act of 1923. He invited my
attention to paras 21 and 24 of the impugned judgment.
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3 CAF 30.2021
5. It is also true that withdrawal application in an appeal
under the Act of 1923 cannot be decided in the manner in which
the withdrawal applications in an appeals under the Motor Vehicles
Act,1988 and under the Land Acquisition Act, 1894 are decided.
The appeals under those provisions of the Acts are admitted as of
right whereas, the appeal under the Act of 1923 can be admitted
only when the substantial questions of law is involved. So such
withdrawal applications need to be decided with grater caution.
6. I will refer to some of the observations of the learned
Commissioner. There was a police investigation and it was found
that the deceased has not died due to electric shock. While
commenting on the defence of the employer, learned Labour
Commissioner in para 21 observed that the deceased lost his life
due to the fight arising out of occupational rivalry.
7. My attention is also drawn to viscera report which
says that Ethel alcohol was found in the viscera sample so also the
forensic expert has opined that the injures in column no.17 of the
post mortem report were due to multiple impact of hard and
blunt object and he has not noticed any evidence of electrical
injury. So also the Electric Inspector has opined that the injuries
noticed on the dead body of the deceased cannot be possible due
to heat generated while undertaking welding work. There are
two issues one is about the place of death and second is about the
cause of death. I resisted myself to express any opinion on either
of the theories. But after considering them I am of the firm
opinion, that the non applicants are not entitled for 100%
withdrawal.
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4 CAF 30.2021
8. Second time request is made by issuing direction to
furnish bank guarantee. I do not think that such direction can be
given considering the background of the respondents i.e. the
representatives of the deceased.
9. There is no dispute about the employer-employee
relationship. There is no dispute that the death has caused during
factory premises. At this stage, if these two factors are considered
I think that the non applicants can only be granted 50% of the
deposited amount on furnishing undertaking only.
10. Hence, the following order is passed :-
ORDER
(a) The application is partly allowed.
(b) The non-applicants/claimants are entitled to receive 50%
of the deposited amount in the Labour Court.
(c) The office of the Commissioner under the Employee's
Compensation Act is directed to transfer 50% of the
deposited amount in the bank account of respondent nos.
1 and 2 on completion of their office procedure.
(d) Respondent nos. 1 and 2 to furnish undertaking that they
will return the amount if directed by this Court.
(e) Application is disposed of.
5 CAF 30.2021
Stand over appeal after four weeks for admission.
(S.M. Modak, J.)
Deshmukh
