Smt. Lilawati Devi vs Smt. Sugandhi Devi
2023 Latest Caselaw 973 Jhar

                                       1              Miscellaneous Appeal No.68 of 2007



        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Miscellaneous Appeal No.68 of 2007
1.   Smt. Lilawati Devi, W/o Ramchandra Yadav
2.   Ashok Kumar, S/o Late Rajendar Yadav
3.   Kumari Ruma, D/o Late Rajendar Yadav
4.   Saroj Yadav @ Saroj Kumar, S/o Late Rajendar Yadav
5.   Ram Chandar Yadav, S/o Late Bhagirath Yadav, aged about 56 years
6.   Sanjoy Yadav, S/o Ram Chandar Yadav
     All of Sector IB, Qr. No.589, Bokaro Steel City, P.O., P.S. & District-
     Bokaro                                            ... Appellants
                              -Versus-
1.   Smt. Sugandhi Devi, W/o Late Rajendar Yadav, resident of village
     Chhapara Chak Mustafa, P.O. & P.S. Mou, District Mou, at present
     residing under the care of Sri Jainath Yadav, Sector IB, Qr. No.589,
     P.O. & P.S. Bokaro Steel City, District- Bokaro
2.   The Divisional Manager, National Insurance Company Ltd.
     Jadubansnagar, P.O. & P.S. Chas, District- Bokaro ... Respondents
                               -----

PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Chanchal Jain, Advocate Mr. Kushal Kumar, Advocate Ms. Niharika Nidhi, Advocate For Respondent No.2 : Mr. Pratyush Kumar, Advocate

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C.A.V. on 16.02.2023 Pronounced on 28.02.2023

Heard Mr. Chanchal Jain, learned counsel for the appellants and

Mr. Pratyush Kumar, learned counsel for respondent no.2.

2. This appeal was heard on 16.02.2023 and on that day, learned

counsel for the appellants has confined this appeal for appellant nos. 1 to 4

and he withdrawn the case of appellant nos. 5 and 6 with liberty to take

recourse under the law, which was allowed and, thereafter the matter was

heard at length and the judgment was reserved.

3. This appeal has been preferred against the order dated 11.12.2006

passed by the learned Presiding Officer, Labour Court, Dhanbad in W.C.

Case No.17/1996 by which the compensation case filed by the appellants

for getting compensation on account of death of workmen Rajendra Yadav 2 Miscellaneous Appeal No.68 of 2007

and Satya Narayan Yadav has been dismissed.

4. On 19.07.1994, the deceased Rajendra Yadav @ Rajendar Yadav and

Satya Narayan Yadav, who were driver and khalasi of truck bearing

registration no. BHV-8805 got steel loaded on the truck at Bokaro and they

were proceeding to Nepal, when the loaded truck reached near Lohapatti,

axle of the vehicle broke and upon which mechanic was called for to repair

the said truck and due to faulty use of the jack by the mechanic, the truck

overturned and the two deceased Rajendra Yadav @ Rajendar Yadav and

Satya Narayan Yadav were crushed under the truck and they died. The

report was made with Mahuda Police Station and postmortem of the dead

bodies were done at P.M.C.H., Dhanbad. The age of deceased Rajendra

Yadav @ Rajendar Yadav was 35 years and he was drawing salary of

Rs.2,100/- and Satya Narayan Yadav was aged about 20 years and he was

drawing salary of Rs.1,200/-. In this background, the claim application was

filed. The learned Presiding Officer, Labour Court vide judgment dated

11.12.2006 found that the appellants have not been able to prove the

relationship of employer-employee between Sugandhi Devi and Rajendra

Yadav @ Rajendar Yadav and Satya Narayan Yadav and, accordingly, the

claim for compensation made on behalf of the claimants was rejected by the

learned Presiding Officer, Labour Court, Dhanbad. Aggrieved with that

judgment, the present appeal has been filed by the claimants.

5. This appeal was admitted on 14.06.2019 on the following substantial

questions of law:

(i) Whether Exhibit 'A', which is a purported certificate produced

by the claimants to establish the relationship of employer and

employee can be considered and taken in evidence, when 3 Miscellaneous Appeal No.68 of 2007

author of the said certificate has not appeared to depose in

Court?

(ii) Whether in view of the judgment passed by the Hon'ble

Supreme Court in the case of Gottumukkala Appala

Narasimha Raju & Others versus National Insurance

Company Limited & Another reported in (2007) 13 SCC

446, in the facts of this case when the respondent No.1, who

is owner of a vehicle has not appeared, the status of the

deceased can be said to be the employee of his wife, who is

respondent No.1 in this case?

6. In view of the above, Mr. Chanchal Jain, learned counsel appearing

for the appellants to answer substantial questions of law, framed by this

Court, submitted that two cases were filed for same occurrence and vide

order dated 26.04.2005, the learned court amalgamated both the cases and

W.C. Case No.19 of 1996 was ordered to be taken up for hearing together

with W.C. Case No.17 of 1996. He further submitted that the owner of the

truck has filed written statement before the Workman Compensation

Commissioner, Dhanbad, but she has not filed any written statement before

the learned Labour Court. The National Insurance Company has filed its

written statement before the learned Labour Court stating therein that the

claim case is not maintainable. He also submitted that the learned Labour

Court has framed 4 issues to decide the claim case and three witnesses

have been examined on behalf of the claimants. He further submitted that

issue nos. (i) and (ii) are decided in favour of the appellants, however issue

nos. (iii) and (iv) are decided against the appellants. He further submitted

that the learned Labour Court has not interpreted Ext.A-1 correctly. Ext.A-1 4 Miscellaneous Appeal No.68 of 2007

is the certificate dated 18.09.1994 issued by Smt. Sugandhi Devi, who is

owner of the vehicle in question, wherein, she has stated that Rajendra

Yadav @ Rajendar Yadav was driver of truck bearing registration no. BHV-

8805 and he was getting salary of Rs.2,100/-. He submitted that although

she was not examined however Lilawati Devi who was examined as witness

no.1 on behalf of the appellants and who happened to be mother of the

deceased proved the signature of Sugandhi Devi at Ext.A-1 and in view of

Section 47 of the Evidence Act, the said document was required to be

considered by the learned Labour Court and only on the ground of non-

examination of Sugandhi Devi, it will not be considered that the document

was futile in that case. To buttress this argument, he relied upon the

judgment passed by the Hon'ble Supreme Court in Chennadi Jalapthi

Reddy v. Baddam Pratapa Reddy (dead) through legal

representatives and another; [(2019) 14 SCC 220].

7. Paragraphs 18, 19 and 20 of the said judgment are quoted herein

below:

"18. Undoubtedly, the opinion of a handwriting expert is a relevant fact under Section 45 of the Evidence Act. Under Section 47 of the Evidence Act, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact. Per the Explanation to Section 47 of the Evidence Act, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

19. A reading of Section 47 of the Evidence Act makes it clear that this provision is concerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. The Explanation to this section goes on to enumerate the circumstances in which a person may be said to have such acquaintance.

20. In the matter at hand, DW 3, in his cross-examination, 5 Miscellaneous Appeal No.68 of 2007

has identified the disputed signature of the first defendant (his elder brother) on Ext. A-1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW 3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW 3 identified the first defendant's signature on Ext. B-1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW 3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW 3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Section 47."

8. Learned counsel for the appellants further submitted that admissibility

of document has not been raised at the very beginning and that document

was marked, which was not objected and on that ground, the said

document cannot be discarded. To buttress this argument, he relied upon

the judgment passed by the Hon'ble Supreme Court in Oriental

Insurance Company Limited v. Premlata Shukla and others;

[(2007) 13 SCC 476]. On the same line, he also relied upon the judgment

passed by the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder

v. Arulmigu Viswesaraswami & V.P. Temple and another; [(2003) 8

SCC 752]. He further submitted that merely on the ground that the owner

was the wife of the deceased and husband is not supposed to work under

the wife, that cannot be a ground for discarding the claim of the appellants

and in view of Ext.A-1, the claim was required to be allowed and in that

view of the matter, law points (i) and (ii) framed by this Court are required

to be answered in favour of the appellants.

9. On the other hand, Mr. Pratyush Kumar, learned counsel appearing for 6 Miscellaneous Appeal No.68 of 2007

the insurance company submitted that unless there is contract of

employment, no relationship of employer-employee can be proved in terms

of the definition part of the Workmen's Compensation Act, 1923. On the

point of non-proving of the document, he relied upon the judgment passed

by the Hon'ble Supreme Court in Gottumukkala Appala Narasimha

Raju and others v. National Insurance Company Limited and

another; [(2007) 13 SCC 446]. He submitted that law point no.(ii) is

made on this judgment. He further submitted that when there is no contract

of employment was produced and no independent witness was examined,

the learned Labour Court has rightly concluded considering that there is

relationship of husband and wife. To buttress this argument, he relied upon

paragraphs 22, 23, 24 and 25 of the judgment passed in Gottumukkala

Appala Narasimha Raju (supra).

10. Paragraphs 22, 23, 24 and 25 of the said judgment are quoted herein

below:

"22. In our considered opinion, it is wholly absurd to suggest that the husband would be a "workman" of his wife in absence of any specific contract. We have no doubt in our mind that only for the purpose of proceeding under the 1923 Act have the appellants concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a "workman" under her appears to be a far-fetched one.

23. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide.

24. No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also known (sic not) borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act 7 Miscellaneous Appeal No.68 of 2007

might not have been maintainable. A petition under the 1923 Act certainly would not lie. Only because Sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of the 1988 Act to the provisions of the 1923 Act save and except to the extent noticed hereinbefore.

25. The ingredients for maintaining a proceeding under the 1988 Act and the 1923 Act are different. The purpose for which a contract of insurance is entered into may be different, whereas under the 1988 Act, it will bear repetition to state, a contract of insurance would be mandatory; for the purpose of applicability of the 1923 Act, it will be optional and as indicated hereinbefore, in Harshadbhai Amrutbhai Modhiya [(2006) 5 SCC 192 : 2006 SCC (L&S) 973] even contracting out is permissible, as under the 1923 Act, the liability of the insurer is limited to the claim of the workman. The liability under Section 147(2)(b) of the 1988 Act, on the other hand, extends to third party."

11. Learned counsel appearing for the insurance company further

submitted that scope of hearing of appeal under Section 30 of the Act and a

regular first appeal under Section 96 of the Code of Civil Procedure are on

different footing and so far as appeal in the Workmen's Compensation Act

(now Employee's Compensation Act) is concerned, that is only required to

be heard on substantial question of law in view of Section 30 of the Act. On

these grounds, he submitted that this appeal is fit to be dismissed.

12. The accident took place on 19.07.1994, thus, it will govern under the

Workmen's Compensation Act, 1923 as the Act was renamed as Employee's

Compensation Act, 1923 in the year 2009.

13. In view of the above submissions of the learned counsel appearing for

the parties, the Court has gone through the L.C.R. as well as the judgment

of the learned Labour Court and finds that the learned Labour Court has

framed 4 issues to decide the claim case. Issue no.(iii) is with regard to 8 Miscellaneous Appeal No.68 of 2007

'whether there was accident leading to death of the workmen Rajendra

Yadav and Satya Narayan Yadav and the said accident arose in course of

and out of their employment or not?' and issue no.(iv) is with regard to

entitlement of the amounts of compensation etc. and both the issues were

taken together by the learned Labour Court as they are interlinked. The

learned Labor Court has considered Ext.A-1, which was the certificate issued

by Sugandhi Devi. A.W.1 Lilawati Devi, who was mother of the deceased

Rajendra Yadav @ Rajendar Yadav, has stated that Sugandhi Devi still

resides at Bokaro. A.W.2 was the mechanic who has come to repair the

punctured tyre of truck and the learned Labour Court held that he was not

competent witness to prove the relationship of employer-employee. A.W.3

was hearsay witness and he was not able to say anything about relationship

of employer-employee. The learned Labour Court has considered Ext.A-1

and held that it is a typed letter which is signed by Sugandhi Devi and

signature of this document is not proved. Sugandhi Devi has not come to

depose to prove that letter and considering that the learned Labour Court

held that relationship of employer-employee has not been proved. Ext.A-2

to A-5 are the photocopies of original of postmortem report, death

certificate, driving license and insurance policy. The learned Labour Court

has held that no registered or other document has been filed to prove that

Sugandhi Devi was running a business firm and has employed Rajendra

Yadav @ Rajendar Yadav and Satya Narayan Yadav. The accident took place

on 19.07.1994, whereas, the said document at Ext.A-1 was issued in form of

certificate on 18.09.1994 i.e. after the accident occurred. How the deceased

was under employment of Sugandhi Devi was not proved by way adducing

evidence as well as oral evidence. There is no straight jacket formula to 9 Miscellaneous Appeal No.68 of 2007

come to a conclusion whether the services rendered comes within the

purview of the term 'in the course of employment'. There can be no single

test be it control test or be it organization test, which can be held to be

determinative factor for determining the jural relationship of employer and

employee. There will be borderline cases wherein there may be employer

and employee relationship and that relationship has to be held only on the

basis of the facts. In order to determine the relationship of an employer and

employee, the first test will be the supervision and control test and the said

test is the prima facie test for determining the relationship of employment.

14. In view of Section 2(1)(e) of the Workmen's Compensation Act, 1923,

"employer" includes any body of persons whether incorporated or not and

any managing agent of an employer and the legal representative of a

deceased employer, and, when the services of a workman are temporarily

lent or let on hire to another person by the person with whom the workman

has entered into a contract of service or apprenticeship, means such other

person while the [workman] is working for him.

In view of Section 2(1)(n) of the said Act, " workman" means any

person (other than a person whose employment is of a casual nature and

who is employed otherwise than for the purposes of the employer' s trade

or business) who is- (i) a railway servant as defined in section 3 of the

Indian Railways Act, 1890 (9 of 1890 ), not permanently employed in any

administrative, district or sub- divisional office of a railway and not

employed in any such capacity as is specified in Schedule II, or (ii)

employed in any such capacity as is specified in Schedule II. whether the

contract of employment was made before or after the passing of this Act 10 Miscellaneous Appeal No.68 of 2007

and whether such contract is expressed or implied, oral or in writing; but

does not include any person working in the capacity of a member of the

Armed Forces of the Union]; and any reference to a workman who has been

injured shall, where the workman is dead, include a reference to his

dependants or any of them.

15. Admittedly, there is relationship of husband and wife between

Sugandhi Devi and deceased Rajendra Yadav @ Rajendar Yadav and how he

has been employed by the wife and what are the nature of control has not

been proved before the learned Labour Court. There may be a case that

husband and wife are doing business and they are responsible for the

business, that has to be proved by way of leading the evidence. In the case

in hand, that is lacking. Ext.A-1 is the certificate issued by Sugandhi Devi,

who has not been examined and she has not proved her signature. In that

view of the matter, the Labour Court was left with no option to hold that

employer-employee relationship has not been established and this Court

comes to a conclusion that Ext.A-1 was rightly interpreted by the learned

Labour Court and, accordingly, law point (i), as framed by this Court, is

answered accordingly. So far as law point (ii) is concerned, in view of the

judgment passed in Gottumukkala Appala Narasimha Raju (supra) , it can be

safely said that respondent no.1 Sugandhi Devi has not appeared before the

learned Labour Court and she has not proved the employer and employee

relationship as well as the husband and wife and in view of the judgment

passed in Gottumukkala Appala Narasimha Raju (supra) particularly in

paragraphs 22 and 23, it can be safely said that story is concocted one.

Accordingly, law point (ii) is answered and held that in view of this

judgment, employer and employee relationship has not been established.

11 Miscellaneous Appeal No.68 of 2007

16. The judgments are required to be considered in the facts and

circumstances of each case. The judgment relied by Mr. Chanchal Jain,

learned counsel appearing for the appellants on the point of Section 47 of

the Evidence Act and not objecting about document are of no help in the

facts and circumstances of the present case considering that the employer

and employee relationship has not been proved by way of appropriate

document as well as oral evidence.

17. In light of Workmen's Compensation Act to prove the employer and

employee relationship, at least chit of paper with regard to nature of work

being done and nature of contract of work was required to be proved before

the learned Labour Court, which is lacking in the case in hand.

18. In view of the above facts, reasons and analysis, no relief can be

extended to the appellants.

19. Accordingly, this appeal is dismissed.

20. Let the L.C.R. be sent back to the concerned learned court forthwith.

                                                       (Sanjay Kumar Dwivedi, J.)
High Court of Jharkhand, Ranchi
Dated: the 28th day of February, 2023
Ajay/        N.A.F.R.