Bombay High Court
The New India Assurance Co Ltd Through ... vs Kamaluddin Ismail Dhande Dead And 2 ... on 6 February, 2025
2025:BHC-AUG:3935
1 fa1497.24 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1497 OF 2024
WITH
CIVIL APPLICATION NO. 5183 OF 2024
IN
FIRST APPEAL NO. 1497 OF 2024
The New India Assurance Co. Ltd.,
Through it's Branch Manager,
2nd Floor, Mahesh Auto, Adalat Road,
Aurangabad.
Through its Authorized Official
and Divisional Manager, Legal Hub
Adalat Road, Aurangabad ...Appellant
(Orig. Resp. No.2)
VERSUS
1. Kamaluddin s/o. Ismail Dhande, (Dead)
Age : 42 years, Occ. Labourer,
R/o. Nehru Chowk, Paithan,
Tal. Paithan, Dist. Aurangabad.
2. Nasim w/o. Kamluddin Dhande,
Age : 38 years, occ. Household,
R/o. As above.
3. Rajesh s/o. Bhimrao Ekade,
Age : Major, Occ. Business,
R/o. Janseva Saw Mill, Tilak Road,
Ahmednagar- 414 001. ... Respondents.
(Res. no.1 & 2 orig. claimants
& Res. no. 3 Orig. resp. no. 1)
..............
Mr. U.S.Usmanpurkar : Advocate for the appellant
Mr. A.S.Usmanpurkar : Advocate for Respondent No.1
Mr. Shaikh Kayyum Najir : Advocate for Respondent No.2
Mr. V.P. Golewar : Advocate for Respondent No.3
.............
CORAM : S. G. CHAPALGAONKAR, J.
Dated : 06.02.2025
2 fa1497.24 judgment
JUDGMENT :
-
1. Appellant insurer takes an exception to judgment and award
dated 29.09.2023 passed the Ld. Commissioner of Employees
Compensation and Judge, Labour Court-2, Aurangabad in Application
W.C.A. (C) No.09 of 2022. (The parties are referred to as per their original
status.)
2. Respondent Nos. 1 & 2 herein instituted proceeding under
Section 22 of the Employees Compensation Act, 1923 before the
Commissioner of Employees Compensation and judge Labour Court,
Aurangabad raising claim for compensation contending that deceased
Wasim Kamaluddin Dhande was employee on truck bearing registration
No. MH-16-AE-7911, owned by Original respondent No. 1, which was
insured with respondent No. 2. On 14.11.2010, while he was on duty,
said truck met with an accident in Malshet Ghat. Deceased got pressed
under truck and died on the spot. The incident was reported to Police
Station. Consequently Crime No. 57 of 2010 was registered with Tokawade
Gramin (Rural) Police Station. According to Claimants, deceased was
getting salary of Rs. 4,000/- p.m. He was aged about 22 years.
Respondent No. 1 being owner and respondent No. 2 being insurer are
jointly and severally liable to pay compensation. Claimants were
dependent upon deceased.
3. Respondent No. 1 owner of vehicle filed his Written Statement
and admitted that he used to hire services of deceased Vasim as driver as
and when work was available with him, but denied that deceased was his
permanent employee. He states that accident occurred due to negligence
on the part of deceased, who was driver of vehicle, at the time of accident.
4. Respondent No. 2 insurer denied its liability contending that
there was no employee-employer relationship between deceased and
3 fa1497.24 judgment
respondent No. 1. It is further pleaded that claim was filed after 11 years,
hence deserves to be dismissed.
5. Tribunal after evaluation of pleadings and evidence allowed
claim and directed respondent Nos.1 & 2 to pay compensation of Rs.
4,23,580/- along with interest @ 12% a.m. from the date of filing of
proceeding i.e. from 24.07.2017 till actual realization of amount. In
addition, respondent No. 1/Employer is saddled with liability to pay
penalty of Rs. 2,11,790/-.
6. Aggrieved, insurer filed present appeal assailing award passed
by the Commissioner for Employees Compensation. Mr. U.S.
Usmanpurkar, learned Advocate appearing for appellant Insurance
Company vehemently submits that proceeding seeking compensation has
been instituted after 11 years, however, the Commissioner without
plausible explanation condoned inordinate delay. Similarly except
admission of respondent No. 1, there is no material to indicate that there
was employee-employer relation between deceased and respondent No. 1
or death of deceased is arising out of said employment. According to Mr.
Usmanpurkar, there is difference in the name of deceased as per Post-
mortem report and the name pleaded in the Claim Petition. He would
therefore, urge that there are many substantial questions of law which
require consideration in this appeal.
7. Mr. Shaikh Kayyum Nazir, learned Advocate appearing for
respondent however justifies the award.
8. Having considered submissions advanced following points are
highlighted on behalf of appellant. Firstly, there is objection as to
employee-employer relationship between deceased and respondent No. 1.
Secondly, difference of name as compared with postmortem report, which
4 fa1497.24 judgment
raises suspicion and thirdly, claim has been entertained after inordinate
delay. The issue of limitation would go to the root of the matter, therefore,
the submissions on this count are considered at the first instance. It can
be observed that Claimants had initially filed Misc. WCA No.30 of 2017,
thereby, praying for condonation of delay caused in filing application for
compensation. The Commissioner decided said application vide order
dated 05.02.2022 and condoned delay. Pertinently, order passed on Misc.
WCA No. 30 of 2017 dated 05.02.2022 was never challenged and attained
finality. As a result of condonation of delay, present WCA (C) Application
No.9 of 2022 has been registered. In this background now it would not be
open for appellant insurer to raise ground of limitation in this appeal,
which has been filed against final award.
9. Second contention raised on behalf of appellant is that there
is nothing to prove employee-employer relationship between deceased and
the owner of vehicle. Pertinently, respondent No. 1 owner of vehicle
caused his appearance and filed Written Statement, wherein, he
categorically admits that on the date of accident, deceased was employed
as driver on the insured vehicle bearing registration No. MH-16-AE-7911
and suffered accidental death. He admits that although deceased was not
permanent employee, his services were hired as and when required.
Aforesaid statement in written statement filed by respondent No. 1 clearly
suggest that deceased was employed on insured truck and his death
occurred during the course of and arising out of the employment with
respondent No. 1. As per evidence, deceased was on driver's seat at the
time of death, which suggests that he was employee on truck at the time
of accident. Insurer could not bring any evidence on record to discredit
statement of employer or Claimants on the point of employee-employer
relationship. Admission of respondent No. 1 which is not controverted by
respondent No. 2 Insurance Company is sufficient to hold that deceased
was employee on truck of respondent No. 1 at the time of accident.
5 fa1497.24 judgment
10. Last submission advanced on behalf of insurer is that there is
difference in the name of deceased and post-mortem report Exhibit No. U-
19. Perusal of post-mortem report would show that name of deceased is
mentioned as Vasim Kamal Dhande instead of Vasim Kamaluddin
Dhande. As such there is bare difference of suffix against name of father.
Appellant cannot make any capital out of this minor discrepancy. Police
papers relating to accident, driving license of deceased and evidence laid
by Claimants is sufficient to establish identity of deceased.
11. Learned Commissioner has rightly considered relevant legal
and factual aspects and passed award. No infirmity is discernible in
approach of Commissioner. No substantial question of law arises for
consideration in this appeal. Hence, First Appeal stands dismissed.
12. In view of dismissal of First Appeal, Civil Applications, if any,
shall stand disposed off.
13. Amount deposited by appellant insurer with Commissioner of
Employees Compensation be released in favour Claimants along with
accrued interest thereon, if any.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
