[Cites 3, Cited by 0]
Gujarat High Court
Nehaben Ayubbhai Bhatti vs Bhabhlubhai Jilubhai Vala on 8 December, 2025
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 326 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No
✓
==========================================================
NEHABEN AYUBBHAI BHATTI & ORS.
Versus
BHABHLUBHAI JILUBHAI VALA & ORS.
==========================================================
Appearance:
MR MB PARIKH(576) for the Appellant(s) No. 1,2,3,4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/12/2025
ORAL JUDGMENT
1. The present First Appeal is filed by appellants
- original claimants under Section 30 of the
Workmen's Compensation Act, 1923 (For short 'the
Act') challenging the judgment and order dated
04.04.2017 passed by Workmens' Compensation
Commissioner, Labour Court, Amreli in W.C.(Fatal)
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
Case No.1 of 2012.
2. Heard learned advocate Mr.M.B.Parikh for
appellants-original claimants and learned advocate
Mr.Yogi Gadhia for respondent No.2. Though served,
none appeared for respondent Nos.1 and 3.
3. Brief facts are as under:-
3.1 The case of claimants in the claim application
is that, deceased - Ayubbhai Ismailbhai Bhatti, was in
the employment of opponent No.1 and was driving
Scorpio Car bearing registration No.GJ-3AB-8451
owned by opponent No.1. On 27.05.2012, under the
instruction of opponent No.1, deceased while driving
the said Scorpio Car met with an accident due to the
bursting of rear tyre. As a result of the said accident,
deceased expired. A compliant was also registered at
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
Chalala Police Station. Panchnama of the place of
accident and Inquest Panchnama together with the
postmortem report, were carried out.
3.2 The legal heirs/representatives of deceased
filed a claim application seeking compensation of
Rs.8,54,280/- with interest @ 12% per annum coupled
with penalty at 50% from opponents. Opponent No.1
appeared and filed a Written Statement at Ex.22.
Opponent No.2 - Insurance Company appeared and
filed Written Statement at Ex.18. Opponent No.3, who
is a subsequent transferee of vehicle, was joined during
the pendency of application, who appeared and filed
Written Statement at Ex.41. Claimant examined widow
- Nehaben Ayubbhai Bhatti at Ex.25 and also examined
Ismailbhai Bhatti father of deceased at Ex.44. Opponent
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
No.1 filed Affidavit in lieu of Examination-in-chief at
Ex.83 but did not remain present for Cross-examination
and therefore, learned Commissioner discarded his oral
deposition. After considering the evidence, learned
Commissioner rejected the claim application. Being
aggrieved and dissatisfied with the impugned judgment
and order, appellants - claimants are before this Court.
4. Learned advocate for appellants has
contended that, on the date of accident i.e.
27.05.2012, deceased was driving Scorpio Car bearing
registration No.GJ-3AB-8451, owned by opponent No.1.
The deceased was in the employment of opponent No.1
and was drawing salary of Rs.8,000/- per month. There
was a relationship of employee and employer between
deceased and opponent No.1. It is contended that,
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
upon instruction of opponent No.1, deceased was
driving said vehicle on the date of accident towards
Diu and rear tyre of Scorpio Car got burst resultantly,
deceased lost control over the vehicle and car turned
turtled. Deceased expired due to vehicular accident.
4.1 It is further contended that the death of
employee is caused by an accident arising out of and
in the course of his employment. It is contended that
the learned Commissioner has committed an error in
not considering the oral depositions of widow and
father of deceased. During their Cross-examination, it
is coming out on record that the deceased was in the
employment of opponent No.1. It is also contended
that except filing a Written Statement, opponent No.1
and 3 have not led any contrary evidence. It is also
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
contended that the statements recorded by Police from
the widow and father of deceased, clearly establish a
relationship of employee and employer between
deceased and opponent No.1. It is contended that the
vehicle in question was insured with opponent No.2-
Insurance Company and policy covers the risk of a
paid driver. It is further contended that the learned
Commissioner has failed to appreciate that opponent
Nos.1 and 3 were duty bound to pay compensation to
claimants within a period of one month from the date
the compensation it became due. Except above, no
other submissions are made by learned advocate for
appellants.
5. Per contra, learned advocate for respondent
No.2 - Insurance Company has supported the judgment
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
and order and contended that the initial burden of
establishing employee-employer relationship and the
occurrence of accident is arising out of and in the
course of employment has not been established by
claimants and therefore, learned Commissioner has
rightly rejected the application. It is further contended
that, on 16.05.2012, the said Scorpio Car was sold to
original opponent No.3- Varunbhai Vinubhai Sarvaiya.
It is contended that, on the date of accident, opponent
No.1 was not the owner of vehicle and therefore, the
Insurance Company cannot be saddled with the liability
for vehicle as on the date of accident opponent No.1
was not the owner of vehicle. It is contended that
opponent No.3 was not insured of present Insurance
Company. It is also contended that the claimants have
failed to establish the income of deceased on the date
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
of accident, as different stands have been taken by
claimants in the claim application and in the oral
evidence with regard to income of deceased.
5.1 It is further contended that opponent No.1 in
his Written Statement, has denied employee and
employer relationship between deceased and opponent
No.1. It is further contended that opponent No.3-
subsequent purchaser of vehicle, also denied the
relationship. As a matter of fact, it is the case of
opponent No.3 in the Written Statement that the
deceased was his friend, and had gone to Diu with his
other friends in the said Scorpio Car. It is also
contended by opponent No.3 in the Written Statement
that the deceased was doing work of selling tyres and
making punctures at Gujarat Tyres, Hira Moti Chowk,
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
Amreli. Therefore, deceased was not in his
employment. Except above, no other submissions are
made by learned advocate for respondent No.2.
6. I have considered the submissions of learned
advocates for the parties and perused the record and
proceedings. The question which is required to be
answered is on the basis of material available on
record. It can be seen from the record that applicants
have stated that deceased was in the employment of
original opponent No.1. Now the first question requires
for consideration is whether deceased was in the
employment of opponent No.1 and secondly whether
the death occurred arising out of and in the course of
employment. Law is settled that the initial burden lies
upon the claimants to establish that there existed a
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
relationship of employer and employee between
opponent no.1 and deceased and injury was caused in
an accident arising out of and in the course of
employment.
In the present case, there is no dispute with
regard to the occurrence of accident on 27.05.2012 and
there is also no dispute on the aspect that on the date
of accident, deceased was driving Scorpio Car bearing
registration No.GJ-3-AB-8451. Undisputedly, claimants
have not led any evidence with regard to existence of
relationship of employee and employer between
deceased and original opponent No.1 and/or opponent
No.3. There is no evidence with regard to drawing of
salary by deceased from either opponent No.1 and/or
No.3. It is pertinent to note that in the claim
application, claimants have not stated that the death
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
which has occurred is arising out of and in the course
of employment. What has been stated by applicants in
the claim application is that deceased drove the
Scorpio Car upon instructions of opponent No.1 and
met with an accident. The contention of applicants
that the deceased was in the employment of opponent
No.1, has been specifically denied by opponent No.1 in
his Written Statement. When there is a dispute of
employer and employee relationship heavy burden lies
upon the claimants to prove it. Mere averments made
in the application and in the Examination-in-chief are
not sufficient to establish a relationship of employee
and employer. Establishing a genuine employer-
employee relations is a basic requirement of any claim.
Compensation is due if death occuring due to an
accident arising out of an in the course of
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
employment. As observed by the learned
Commissioner, claimants have failed to discharge the
primary burden. In the cross-examination also, denial
replies with regard to proof of relationship that a
employee-empoyer have been given by claimants.
Over and above existence of relationship that of
employee and employer, second part of Sub-section (1)
of Section 3 is also required to be established by
claimants. The other limb of Sub-section (1) of Section
3 of the Act envisages that the accident must have
occurred arising out of and in the course of
employment. Section 3(1) of the Workmen's
Compensation Act, is reproduced as under:-
"If personal injury is caused to a workman by accident arising out of
and in the course of his employment, his employer shall be liable to
pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be sol liable-
(a) x x x x x x
(b) x x x x x x
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
(i) x x x
(ii) x x x
(iii) x x x
7. The personal injury if caused to a workman
by an accident arising out of and in the course of
employment, an employer shall be made liable to pay
compensation, if within the stipulated time, the
employer does not deposit the compensation.
Therefore, to invoke the provisions of Sub-section (1)
of Section 3 of the Act, over and above, the
relationship of employee and employer, claimants must
establish that the injury/death is by an accident arising
out of and in the course of employment. If the death
is not arising out of and in the course of employment,
the provisions of the Act, does not apply.
8. In the present case, if the statement of
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
father of deceased recorded before the Police at Ex.58
is perused, the witness/father, states that the deceased
was driving the vehicle of Varunbhai Vinubhai Sarvaiya
- opponent No.3 on the date of accident and
deceased was travelling towards Diu with his friends
on a pleasure trip. It is also the case of original
Opponent No.3 - subsequent purchaser of vehicle, that
deceased was his friend and the car was asked from
him by deceased and his friends for a pleasure trip of
Diu. The statement of widow recorded before the
Police Authority also reiterates the said facts. Before
the Police Authority, neither widow nor father of
deceased stated that the death has occurred due to an
accident arising out of and in the course of
employment. It is not the case before Police Authorities
that deceased was in the employment of opponent
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
No.1. In absence of any other material statements
made by widow and father of deceased cannot be
brushed aside and such statements can be considered
as a corroborative piece of evidence in absence of any
other reliable evidence, while considering an issue
pertaining to applicability of Sub-section (1) of Section
3 of the Act. The findings of learned Commissioner
further receives strength from the Written Statement
of Opponent No.3 that deceased was doing the work of
selling tyres and making punctures at Gujarat Tyres,
Hira Moti Chawk, Amreli. This fact has not been
denied by claimants at the time of leading evidence.
9. Considering the aforesaid facts, appellants
have failed to point out any contrary material whereby
this Court can entertain the present First Appeal and
NEUTRAL CITATION
C/FA/326/2018 JUDGMENT DATED: 08/12/2025
undefined
disturb the findings of learned Commissioner. The
appellants have also failed to establish any substantial
question of law in the present First Appeal. Section 30
of the Act is attracted only in cases where the
substantial questions of law are involved. Thus, in
absence of substantial questions of law, present First
Appeal lacks merit and the same is accordingly
dismissed. Record and proceedings be sent back to the
concerned Court/Tribunal.
(D. M. DESAI,J)
MANOJ
