Bombay High Court
National Insurance Company Ltd. Thr. ... vs Sau. Tara W/O Harichand Sakure And Anr on 18 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1072
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.460 OF 2010
APPELLANT : 1. National Insurance Company Limited,
Regional Office, Mangalam Arcade 2nd
floor, Dharampeth Extension,
Nagpur - 440010,
through its authorized officer
//VERSUS//
RESPONDENTS : 1. Sau. Tara w/o Harichand Sakure,
(Ori. Applicant) Aged about adult,
R/o Kusari, Post Mohgaon,
Tahsil Mohadi, District Bhandara
Ori. N.A. No.2 2. Harichand Laxman Sakure,
Aged about adult, Occu. Cultivator,
R/o. Kusari, Post Mohgaon,
Tahsil Mohadi, District Bhandara
**************************************************************
Mr. Cecil A. Anthony, Advocate for appellant.
Mr. R. R. Dawda, Advocate for respondent No.1.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 18th JANUARY, 2024
ORAL JUDGMENT
1. In this appeal filed under Section 30 of the Workmen's
Compensation Act, 1923 (for short, "the Act of 1923") the
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challenge is to the judgment and order dated 30 th December, 2009,
passed by the learned Commissioner for Workmen's
Compensation, Labour Court, Bhandara, whereby the
commissioner allowed the claim for compensation filed by the
respondent No.1.
2. This appeal was admitted on the following substantial
questions of law.
i) Whether the penalty could have been
imposed on the insurance company in the facts and
circumstances of the case?
ii) Whether there was an employer-
employee relationship between the deceased and the
respondent No.2?
3. Facts leading to the above questions need to be stated.
Respondent No.1 (hereinafter referred to as 'claimant' is
the mother of the deceased. Respondent No.2 is the father of the
deceased and husband of the claimant. It is the case of the
claimant that her deceased son was having a valid driving licence.
Respondent No.2 owned a tractor bearing registration
No.M.H.36/D/9367. The deceased was employed by respondent
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No.2 on a monthly salary of Rs.4500/-. On October, 21, 2008 as
instructed by respondent No.2, the deceased carried the tractor to
the agricultural land of respondent No.2 for ploughing the land. It
is stated that while undertaking the plowing operation, the tractor
turned turtle. The deceased was found under the tractor. He died
on the spot. The matter was reported to the police.
4. The appellant (hereinafter referred to as respondent
No.1) is the insurer of the tractor in question. According to the
claimant, she was dependent on the income of the deceased. The
deceased was staying with her. It is stated that after the death of the
deceased, she lost the source of her livelihood. The claimant,
therefore, claimed compensation under the Act.
5. Respondent No.2-the owner of the tractor, did not
appear before the Commissioner. Respondent No.1-Insurance
Company filed the reply and opposed the claim. The Insurance
Company has admitted the relationship as a mother and son
between the claimant and the deceased. However, Insurance
Company contended that there was no employer and employee
relationship between the deceased and respondent No.2. They
were residing together. The deceased was driving the tractor, being
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the son and member of the family of the respondent No.2. In
order to get compensation, a false case has been filed.
6. The claimant has examined herself. The claimant has
also examined one independent witness to seek corroboration to
her evidence. Respondent No.1-Insurance Company did not
adduce the oral evidence. Similarly, the evidence was not adduced
by respondent no.2-owner of the tractor. Respondent No.2 has
admitted before the Commissioner that there was a relationship of
the employer and employee between him and the deceased.
Learned Commissioner on appreciation of the available evidence,
found substance in the claim and accordingly granted the
compensation.
7. Learned Advocate for the respondent No.1- Insurance
Company submitted that the evidence adduced by the claimant
woefully falls short to prove the relationship as an employer and
employee between the deceased and respondent No.2. Learned
Advocate pointed out that the deceased was the son of the
respondent No.2-owner of the tractor, and therefore, there was no
question of employing the deceased as a driver on the tractor.
Learned Advocate submitted that there is no documentary
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evidence to prove that respondent No.2 was paying Rs.4500/- per
month towards salary to the deceased. Learned Advocate submitted
that in order to claim the compensation, a false case has been filed.
Learned Advocate submitted that the evidence is not credible, and
therefore, ought to have been discarded by the learned
Commissioner. Learned Advocate further submitted that the order
of the Commissioner imposing the penalty on the respondent
No.1-Insurance Company is not legal and proper. Learned
Advocate for the respondent No.1 - Insurance Company relied
upon the decisions in Smt. Lata Ramchandra Ubale vs. Shri
Ramchandra Shankar Ubale and another reported at [2012(4)
Mh.L.J.] and in Gottumukkala Appala Narasimha Raju & Ors. Vs.
National Insurance Co. Ltd., & Another, reported at AIR 2007 SC
2907 to make good his submissions.
8. Learned Advocate for the claimant submitted that there
is no legal bar to employ a son by the father as a driver. Learned
Advocate further submitted that considering the relationship
between the parties, the claim, which is otherwise tenable under
the law, cannot be rejected. Learned Advocate submitted that the
question is whether there was a relationship of the employer and
employee. The question of fact was therefore required to be
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addressed on the basis of the evidence adduced by the parties.
Learned Advocate submitted that learned Commissioner has found
the evidence cogent, concrete and reliable. Learned Advocate
submitted that no evidence has been adduced by the Insurance
Company to rebut the evidence adduced by the claimant. Learned
Advocate submitted that therefore, the order passed by the learned
Commissioner does not warrant interference. Learned Advocate
for the claimant relied upon the judgments in the case of New
India Assurance Co. Ltd. Vs. Gajanan D. Dengi and another
reported at 2008 LawSuit (Kar) 518, and in Oriental Insurance
Co. Ltd, Vs. Narinder Kaur and others reported at 2014 LawSuit
(P& H) 397 to support his contentions.
9. I have perused the judgments relied upon by the learned
Advocates for the parties. It is seen on perusal of the decisions
relied upon by the learned Advocate for the appellant-Insurance
Company that while addressing a similar question of fact, the claim
seeking compensation was rejected. It is evident that the evidence
adduced was not found sufficient to prove the question of fact. It
is seen on perusal of the decisions relied upon by the learned
Advocate for the claimant that in the similar set of facts the
Karnataka High Court was pleased to accept the claim.
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10. Whether the relationship between an employer and
employee exits or not is a question of fact? There is no bar in the
law that family member cannot be employed by another family
member. There is no bar that a father cannot employ his son as a
driver to ply a vehicle owned by him. In this case, the deceased was
the son of the claimant as well as respondent No.2, the owner of
the tractor. The death in the vehicular accident is not disputed. It is
contended that the deceased, being the son of respondent No.2
was his family member and therefore, the claim was not at all
maintainable. It is true that the initial burden was on the claimant
to establish the relationship as an employer and employee between
the deceased and respondent No.2-the owner of the tractor. It was
also incumbent on the claimant to prove that the deceased was
employed and salary was paid to him. In this case, admittedly,
evidence has not been adduced by the appellant-Insurance
Company. The only question that needs to be considered is
whether the evidence adduced on record is sufficient to prove that
the deceased was employed by the owner of tractor respondent
No.2 as a driver. Respondent No.2 owner of the tractor, who is
father of the deceased has admitted the contention of the claimant
that the deceased was employed by him as a driver on a monthly
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salary of Rs.4500/-.
11. The learned Commissioner, on appreciation of the
evidence adduced by the claimant, found that indeed the
relationship of employer and employee existed between the
deceased and respondent No.2. As stated above, there is no bar in
the law to employ the son by father as a driver on his vehicle. It is
not uncommon in a society that a son after attaining the majority,
is required to earn his own livelihood. Son therefore, can be
employed by the father as a driver. The claimant has stated that
she was residing with the deceased separately from her husband. In
order to seek corroboration to her oral evidence on all these
material facts, one independent witness has been examined.
Learned Commissioner found the evidence cogent and reliable.
The claimant and her witness were subjected to searching
cross-examination. Perusal of the cross-examination would show
that nothing has been brought on record in the cross-examination
to discard and disbelieve the evidence. Learned Commissioner
found the evidence credible. Learned Commissioner recorded the
reasons for accepting the evidence as credible. On re-appreciation
of the evidence, I am convinced that learned Commissioner did
not commit any mistake in accepting the oral evidence and
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ultimately granting the claim.
12. It was open for the appellant-Insurance Company to call
the respondent No.2 and subject him to cross-examination.
Insurance Company could have relied on police case papers to
make good its defence. No evidence has been adduced in rebuttal.
The defence of the appellant-Insurance Company has not been
supported by any evidence. In the facts and circumstances, I
conclude that there was no error on the part of the learned
Commissioner in granting the claim filed by the claimant.
Accordingly, I answered both the questions in the affirmative.
13. As a result, thereof appeal is dismissed.
14. 50% of amount of compensation has already been paid
to the claimant. The balance 50% of the amount of compensation
be paid over to the claimant. Insurance Company as well as
respondent No.2 are directed to pay balance 50% of the amount of
compensation to the claimant within four months from the date
and receipt of the this order.
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15. First appeal stands disposed of. No order as to costs.
Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 29/01/2024 10:47:02
