Bombay High Court
National Insurance Co. Ltd vs Smt. Krishnavati Kalpanath ... on 1 September, 2021
Bench: Nitin W. Sambre
Digitally signed by
IRESH IRESH
SIDDHARAM
SIDDHARAM MASHAL
MASHAL Date: 2021.10.05
17:17:41 +0530
2.572.18 fa.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 572 OF 2018
NATIONAL INSURANCE CO. ....APPELLANT
LTD. THROUGH ITS MANAGER
V/s.
SMT. KRISHNAVATI KALPANATH .....RESPONDENTS
TIWARI AND OTHERS
WITH
INTERIM APPLICATION NO. 742 OF 2021
IN
FIRST APPEAL NO. 572 OF 2018
SMT. KRISHNAVATI KALPANATH TIWARI ....APPLICANTS
AND ANOTHER
IN THE MATTER BETWEEN
NATIONAL INSURANCE CO. ....APPELLANT
LTD. THROUGH ITS MANAGER
V/s.
SMT. KRISHNAVATI KALPANATH .....RESPONDENTS
TIWARI AND OTHERS
WITH
CIVIL APPLICATION NO. 1293 OF 2016
IN
FIRST APPEAL NO. 572 OF 2018
1/8
2.572.18 fa.doc
NATIONAL INSURANCE CO. ....APPLICANT
LTD. THROUGH ITS MANAGER
V/s.
SMT. KRISHNAVATI KALPANATH .....RESPONDENTS
TIWARI AND OTHERS
Mr. Amol Gatne advocate for appellant
Mr. Ketan Dhavle advocate for respondent nos. 1 & 2
CORAM : NITIN W. SAMBRE, J.
DATE: SEPTEMBER 1, 2021.
P.C.:
1] This appeal is by Insurance Company questioning the
Judgment of the Employees' Compensation Act, 1923 (Hereinafter
referred to as 'the Act' for the sake of brevity).
2] Deceased Shivmohan Tiwari died in an accident while working
as cleaner on a trailer bearing registration No. MH-04/CU/6589.
Claiming his earning at the rate of Rs. 8000/- per month,
respondent-mother and brother of Shivmohan claimed to be
dependents, sought compensation which came to be allowed vide
judgment impugned dated 30/04/2015 by the Commissioner,
2.572.18 fa.doc
Employees' Compensation.
3] Mr. Gatne, learned counsel for the appellant-insurance
company has relied on following questions of law:
(a) Employer-employee relationship was not
established and;
(b) Court has recorded perverse fndings.
4] So as to substantiate aforesaid contentions, Mr. Gatne, would
claim that in written statement fled at Exhibit C-2 by the appellant,
relationship was specifcally denied.
5] As far as the issue of perverse fnding is concerned, he would
invite my attention to the observations of the Commissioner. Learned
counsel would urge that just because driver was appointed by the
insured on trip basis, it cannot be inferred that deceased Shivmohan
appointed as cleaner, gets status of agent, of the opposite party. He
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has drawn support from the Judgment of the Apex Court in the
matter of Shakuntala Chandrakant Shreshti V/s. Prabhakar Maruti
Garvali and another1 particularly paragraph nos. 10, 39-42.
According to him, if the perverse fndings are recorded in absence of
any legal evidence, Court in appellate jurisdiction can frame the
question of law.
6] Mr. Dhavle, learned counsel for the respondent would urge that
appeal is liable to be dismissed as no question of law is involved. It
appears that respondent nos. 1 & 2 claimants so as to establish their
claim have relied on certain documents such as F.I.R. Exhibit U-10
alongwith police papers, demand notice Exhibit U-11, postal receipts
of demand notice Exhibit U-12, acknowledgment of demand notice
Exhibit U-13 collectively, identity card Exhibit U-14, ration card
Exhibit U-15, insurance policy of offending vehicle Exhibit U-16 and
copy of school certifcate Exhibit U-17 and death certifcate Exhibit
U-18.
7] The fact remains that appellant and insurer questioned the
1 [(2007) 11 Supreme Court Cases 668]
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employer-employee relationship. Said contentions are based on
absence of any appointment order or contract of employment between
deceased and the insurer, insured. Perusal of documents of
investigation after registration of crime against the offending vehicle
depicts that deceased Shivmohan was working as cleaner on the
offending vehicle. Such status of deceased Shivmohan cannot be
inferred to be without consent of the driver. Rather, Motor Vehicles
Act contemplates that cleaner/helper to be accompanied with the
driver in long vehicle like trailer which in this case is claimed to be
offending vehicle.
8] In the aforesaid background, when appellant has failed to
cross-examine witness of the claimant on the aforesaid issue and the
fact that appellant has failed to bring on record independent evidence
so as to establish absence of relation of employer-employee, the
Tribunal, in my opinion, was justifed in recording fndings that
deceased cleaner Shivmohan, was an agent of the driver as the driver
was given lump-sum amount by the employer. The said act of the
employer giving lump-sum amount to driver for carrying out task of
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driving and transportation of goods, includes necessary
arrangements to be made in such an Act. As such, deceased cleaner
was justifably employed by the driver for carrying out the oral
contract between the parties i.e. employer/insured. In the aforesaid
background, the claim that perverse fndings are recorded, cannot be
inferred from the record.
9] The fact remains that driver of the offending vehicle was
employed who has in categorical terms stated about working of
Shivmohan as cleaner on the vehicle in question. That being so and
having regard to the fact that appellant has failed to extract any
admission from the said witness about absence of employer-employee
relationship, in my opinion, fndings recorded by the Tribunal are in
tune with the provisions of the Act.
10] In the aforesaid background, contentions that there was
absence of employer-employee relationship also cannot be inferred.
11] As far as reliance placed by Mr. Gatne on the judgment of
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Shakuntala Shreshti [cited supra] is concerned, it is to be noted that
for inferring perverse fndings, it is for the appellant to demonstrate
and establish from the record that the Tribunal has erred in
recording fndings which are perverse i.e. without any pleadings and
evidence.
12] Considering social aspect of the legislation under which the
claim is entertained and the fact that appellant has failed to establish
from the record about absence of employer-employee relationship, in
my opinion, said Judgment will be of hardly any assistance.
13] No case for interference is made out. Appeal as such fails,
stands dismissed.
14] As far as Interim Application No. 742 of 2021 is concerned, if
not deposited, entire amount of compensation with accrued interest
is directed to be deposited in the Court of Commissioner for
Employees' Compensation, Labour Court, Mumbai within period of 4
weeks from today. Claimants shall be entitled to withdraw the
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amount in accordance with the directions of the Commissioner for
Employees' Compensation, Labour Court, Mumbai.
15] Amount deposited in this Court, if any, is ordered to be
forthwith transmitted to the Court of Commissioner for Employees'
Compensation, Labour Court, Mumbai so as to facilitate withdrawal
of the same by the claimants. Application stands disposed of.
16] Since the Appeal is dismissed, Civil Application No. 1293 of
2016 has become infructuous and disposed of accordingly.
[NITIN W. SAMBRE, J.]
