Bombay High Court
Umesh Parasmal Kothari vs Smt. Kalpana Ramesh Kukulwar on 21 March, 2025
2025:BHC-NAG:3463
83.fa.867.23.jud.doc 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.867 OF 2023
Appellant : Umesh Parasmal Kothari,
(Ori. Respondent) Aged 50 Years,
M.K. Motors, H.P. Petrol Pump, Waghapur Road,
Yavatmal.
- Versus -
Respondent : Smt. Kalpana Ramesh Kukulwar,
(Ori. Petitioner) Adult, Occupation - Nil,
R/o Chapanwadi, Yavatmal.
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Mrs. Mrunal Naik, Advocate for the Appellant.
Mr. D.C.R. Mishra, Advocate for the Respondent.
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CORAM : M.W. CHANDWANI, J.
DATE : 21st MARCH, 2025.
ORAL JUDGMENT :
Heard the learned Counsel appearing for the parties.
02. The appeal challenges the judgment and award passed by the
Commissioner under the Employee's Compensation Act, 1923, Judge,
Labour Court, Yavatmal on 14/06/2023, thereby allowing the application
of the respondent filed under Section 22 of the Employee's Compensation
Act, 1923 (hereinafter referred to as the "Act" for short) and directing the
appellant to pay an amount of Rs.6,39,200/- towards compensation on
account of death of deceased-Ramesh Kukulwar, who was an employee of
the appellant.
03. The facts giving rise to the case in a nutshell are as under:
(i) The respondent, widow of deceased-Ramesh Kukulwar, filed
an application under Section 22 of the Act for compensation
alleging that her deceased-husband was serving with the
appellant as a labourer. On the fateful day, he was proceeding
towards the house of the appellant on his motorcycle for
handing some cash over to the appellant. On the way, the
deceased met with an accident and thereafter succumbed to
the injuries. The deceased was 48 years old and was earning
a monthly salary of Rs.5,000/- and therefore, a claim for
compensation of Rs.3,99,500/- was made.
(ii) The appellant appeared and resisted the claim inter alia
denying the relationship between him and deceased-Ramesh
as employer and employee. The learned Judge of the Labour
Court after recording the evidence allowed the application by
passing the impugned judgment and award. Feeling aggrieved
with the impugned award, the present appeal came to be filed.
04. Learned Counsel Mrs. Mrunal Naik appearing on behalf of the
appellant vehemently submitted that the respondent failed to prove the
relationship between the appellant and deceased-Ramesh as of employer
and employee. According to her, muster-rolls from April, 2010 to March,
2011 produced by the appellant do not bear the name of deceased-Ramesh
as his employee. According to her, these documents have not been
considered by the learned Judge of the Labour Court and wrongly
proceeded to hold that deceased-Ramesh was an employee of the
appellant. She further vehemently submitted that the claim of the
respondent was for Rs.3,99,500/-, whereas the learned Judge of the
Labour Court awarded a compensation of Rs.6,39,200/-. One of the
submissions of the learned Counsel for the appellant is that the accident
did not occur out of the employment and therefore, this aspect had to be
considered by the learned Judge while passing the impugned award. To
butters her submission, she seeks to rely on the following case laws :
(1) Shantabai Ananda Jagtap and another vs. Jayram Ganpati
Jagtap and another1.
(2) Dyaneshwar Madhukar Jare vs. Mrs. Eshwari Vellapandi
Devar & Anr. 2.
(3) United India Insurance Company Ltd. vs. Ashok s/o Gulabrao
1 (2023) 8 SCC 171
2 Bombay High Court in First Appeal No.1056/2022
Kale and another3.
05. Per contra, learned Counsel Mr. D.C.R. Mishra appearing on
behalf of the respondent supported the impugned judgment and award and
sought rejection of the appeal.
07. Having heard the learned Counsel for the appellant as well as
the respondent, the following points arise for my determination:
i. Whether the learned Judge of the Labour Court was justified
in holding that deceased-Ramesh was an employee of M/s.
M.K. Motors, a partnership of which the appellant is a
partner?
ii. Whether the learned Judge of the Labour Court was right in
granting higher compensation than what was prayed for by
the respondent?
iii. Whether the accident occurred in the course of employment
or was arising out of the employment?
08. To prove the relation of employer and employee, the
respondent produced a Training Certificate (Exh.U-17). Bare perusal of
the Certificate goes to show that the Certificate was issued by the
Chief/Senior Regional Manager, Retail Regional Office, Hindustan
Petroleum Limited on 27/10/2009 for participation of the deceased in the
training program as an employee of M/s. M.K. Motors. The contention
3 Bombay High Court in First Appeal No.33/2007 (Nagpur Bench)
is that the deceased had his left job and he was not an employee of the
firm from 1st April, 2010. Since, the alleged accident occurred on
04/06/2010, the appellant cannot be held liable for any accident which
occurred after his employment ceased to exist. This prompts me to go
through the pleading of the parties, particularly of the appellant. Bare
perusal of the written statement goes to show that the appellant denied
that deceased-Ramesh was ever working with the firm. The Certificate
falsifies the contention made in the written statement as well as on the
affidavit during the course of evidence. Now the stand has been taken that
the deceased was earlier serving with the appellant and then he left the
service that too without any pleading and evidence. No perversity can be
seen in the finding which is based on preponderance of probability of the
learned Judge of the Labour Court that deceased-Ramesh was an emplyee
of the appellant.
09. Though, the respondent claimed wages at Rs.5,000/- per
month, the learned Judge calculated the salary of the deceased as
Rs.8,000/- per month and proceeded to calculate the amount
compensation at Rs.6,39,200/-. As per Section 4(1)(a) of the Act, the
amount of compensation payable to the dependent of the deceased shall be
an amount equal to 50% of the monthly wages of the deceased multiplied
by the relevant factor or an amount of Rs.1,20,000/-, whichever is more.
Under sub-section (1-B) of Section 4 of the Act, the Central Government
may, by notification in Official Gazette, specify, for the purposes of sub-
section (1), such monthly wages in relation to an employee as it may
consider necessary. There is no dispute that by notification dated
31/05/2010, the Central Government has fixed monthly wages at
Rs.8,000/- per month. As per Section 4(1)(a) of the Act, 50% of the
monthly wages of the deceased multiplied by the relevant factor will be the
compensation under Section 4 of the Act. Therefore, since on the date of
death, the monthly wages were fixed by notification dated 31/05/2010 at
Rs.8,000/-, the learned Judge of the Labour Court was right in calculating
the amount of Rs.4,000/- which is 30% of Rs.8,000/- while calculating the
amount of compensation. Therefore, no fault can be seen with this finding
of the learned Judge granting compensation of Rs.6,39,200/- to the
respondent.
10. So far as the submission regarding the death of the deceased
is concerned, the police papers, particularly Crime Details Form goes to
show that deceased-Ramesh was proceeding towards the house of the
appellant. Even the First Information Report goes to show that the
deceased was admitted in Sanjeevan Hospital by the wife of the deceased.
That apart, the cross-examination of the appellant also goes to show that
he came to know about the incident on the same day at 10:00 p.m. All
these go to corroborate the version of the respondent that the deceased
was proceeding towards the house of the appellant. I do not find force in
the argument for the learned Counsel for the appellant that the accident
was not arising out of or did not occur in the course of the employment.
Therefore, the reliance placed by the learned Counsel for the appellant in
the cases of (i) Shantabai Jagtap, (ii) Dyaneshwar Jare and (iii) Ashok
Kale (supra) will not be helpful to the appellant to absolve him from his
liability.
11. In the result, the appeal being devoid of merits, is dismissed.
There shall be no order as to costs.
(M.W. Chandwani, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 04/04/2025 12:39:27
