Mrs.Vidhya vs U.Sundaramoorthy
2021 Latest Caselaw 4011 Mad

                                                                                C.M.A.No.395 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated : 17.02.2021

                                                         CORAM:

                                   THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI

                                                C.M.A.No.395 of 2017
                   Mrs.Vidhya

                                                                                     .. Appellant
                                                         Vs.
                   1.U.Sundaramoorthy
                   2.The New Assurance Company Limited,
                   New No.204, Old No.114, Kutchery Road,
                   Mylapore, Chennai - 600 004.                                  .. Respondents

                   PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
                   Workmen's Compensation Act,           against the decree and judgment dated
                   11.12.2014, made in W.C.No.550 of 2009, on the file of the Commissioner for
                   Workmen's Compensation, Deputy Commissioner of Labour - II, Chennai.



                                         For Appellant     : Mr.U.Chidambaram

                                         For Respondents : M/s.Salomi




                   1/6


https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A.No.395 of 2017

                                                   JUDGMENT

The appellant herein is the petitioner in W.C.No.550 of 2009,

filed by her claiming compensation for the fatal death of her son, who died

due to the accident happened on 20.09.2009, while the deceased was driving

the auto rickshaw bearing registration No.TN-01D-3999, as a driver

employed under first respondent and the vehicle was insured with the second

respondent.

2. Heard both sides. The Commissioner of Labour dismissed

the claim stating that the accident was not happened during the course of

employment under the first respondent. Aggrieved by that order, the appeal

is filed.

3. According to the appellant her son viz., velu was employed as

a driver under the first respondent and he received monthly salary of

Rs.6,000/-, while so on 20.09.2009, her son driven the auto in GST Road,

near Karunkuzhi Petrol Bunk, Kanchipuram District, at that time, a Buffalo

suddenly crossed the road. To avoid the accident, the deceased turned the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.395 of 2017

above auto to the left side, unfortunately the auto was capsized. Due to the

above said accident, the deceased was sustained multiple grievous injuries and

he died on the spot.

4. The petitioner proved her claim through documents namely

Exs.P1 to P7 and she was examined as PW.1. But the Commissioner of

Labour erroneously dismissed the claim and concluded that employee-

employers relationship was not proved by her.

5. The learned counsel for the appellant pointed out that before

the Commissioner of Labour, the first respondent remained ex-parte and not

raised any objection to the petitioner's averments. The silence on the part of

the first respondent amounts to admission of the employee-employers

relationship between them. But, without appreciating this fact, the

Commissioner of Labour erroneously dismissed her claim. Hence, he prays to

allow this appeal.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.395 of 2017

7. Point for consideration:

Whether the Commissioner of Labour was correct in holding

that the accident has not occurred during the course of the employment and it

was happened, while the vehicle was used by the deceased for his own

purpose?

8. On perusal of the evidence, the mother of the deceased was

examined as PW.1 and documents FIR, death certificate, legal heirs

certificate, driving licence, policy copy, were marked on her side.

9. According to her, while her son driven the auto rickshaw

belongs to the first respondent, he met with an accident and he died due to the

grievous injuries sustained in that accident. But during the course of

examination, he stated that while returning from the Ellaiyamman Koil along

with his family members met with an accident. Even as per the FIR, when

the deceased along with his family members returned from Perambur

Ellaiyamman temple, the accident was happened. So the facts proved that

while, the auto rickshaw used by the deceased for his own purpose, he met

https://www.mhc.tn.gov.in/judis/ C.M.A.No.395 of 2017

with the accident. There is no evidence that he driven the vehicle for 3rd

parties at the time of accident. The evidence of the petitioner itself proved that

the auto was driven by her son for his own purpose at the time of the accident.

So the Commissioner of Labour concluded that the accident was not

happened during the course of the employment under first respondent. Apart

from that there is no evidence to establish the relationship between the first

respondent and the deceased as employee-employer relationship. So the

Commissioner of Labour, dismissed the claim of the petitioner which calls for

no interference by this Court. Accordingly, the substantial question of law is

answered.

11. Accordingly, this Civil Miscellaneous Appeal is dismissed.

At the most, the petitioner can work out her remedies under the provisions of

Motor Vehicle Act, if the law permits.

17.02.2021

ub Index : Yes/No Speaking Order: Yes/No

https://www.mhc.tn.gov.in/judis/ C.M.A.No.395 of 2017

T.V.THAMILSELVI,J.

ub

C.M.A.No.395 of 2017

17.02.2021

https://www.mhc.tn.gov.in/judis/