Madras High Court

S.Muthusamy vs K.Ramasamy on 18 February, 2021

                                                                             C.M.A.No.1288 of 2014


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated: 18.02.2021

                                                         CORAM:

                                    THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI


                                               C.M.A.No.1288 of 2014


                   S.Muthusamy                                              .. Appellant

                                                          Vs.

                   1.K.Ramasamy

                   2.The United India Insurance Co. Ltd.,
                     Divisional Office, No.2, Dr.Sankaran Road,
                     Namakkal-637 001.                                     .. Respondents


                   PRAYER : Civil Miscellaneous Appeal is filed under Section 30 of the
                   Workmen Compensation Act, praying to set aside the order passed in
                   W.C.No.283 of 2006 on the file of the Workmen's Compensation
                   Commissioner cum Deputy Commissioner of Labour, Salem dated
                   30.06.2013.
                                         For Appellant     : Mr.C.Kulanthaivel

                                         For Respondents
                                               For R2    : M/s.I.Malar
                                               For R1    : Ex-parte

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https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.1288 of 2014


                                                   JUDGMENT

The appellant herein is the petitioner in W.C.No.283 of 2006,

which was filed by him claiming compensation for the grievous injuries

sustained by him due to the accident happened on 28.01.2006 while he was

worked as a driver under the 1st respondent in Tractor with harvesting

machine which was insured under the 2nd respondent.

2. The 2nd respondent contested the petition and 1st respondent

remained ex-parte before the Deputy Commissioner of Labour, Salem.

3. On hearing both sides the Labour Commissioner dismissed the

petition concluding that the appellant / petitioner was not worked as driver

under the 1st respondent at the time of the accident. Aggrieved by the order,

the appellant preferred this appeal.

4. The R1 remained ex-parte and the 2nd respondent alone contested

this appeal.

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5. According, to the appellant he was employed as a driver under

the 1st respondent for a monthly wage of Rs.5,000/- per month. In the course

of his employment on 28.01.2006, the new harvesting machine belonged to

the 1st respondent was taken to Bhavani – Kooduthurai, Sangameswarar

Temple for pooja. At that time, the vehicle was driven by its owner/1st

respondent and the appellant was sitting on the left side of the vehicle. Since

the 1st respondent had driven the vehicle in a negligent manner, the appellant

fell down and the back wheel ran over him, therefore, he sustained injuries

in his right leg. Immediately, he was taken to a private hospital, inspite of the

treatment, he was not able to work and he suffered with disability and

claimed compensation from his owner and also the Insurance Company, in

which the vehicle was insured.

6. As per the contention of the Insurance company, the appellant

was not a driver at the time of the alleged accident and also it was not

happened due to the course of his employment. Besides, the vehicle was also

not registered, which are all constitute violation of policy conditions and the

Deputy Commissioner of Labour appreciated this fact and dismissed his

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claim petition.

7. Thus the Point arises for consideration is as to, whether the

Deputy Commissioner of Labour erroneously concluded that there is no

employer and employee relationship between the 1st respondent and the

appellant and also he is not entitled to claim compensation ?

8. At the time of the arguments, the learned counsel for the

appellant submits that before the accident, he was appointed as a driver to

drive the newly harvesting machine on the date of accident, while the vehicle

was taken to temple to perform pooja as it was a newly purchased so with the

sentimental attitude, the owner of the vehicle driven the harvesting machine

and this appellant was sat on the left side, due to the negligent driving of the

owner, he has fell down and sustained grievous injuries. Further, he

contended that the 1st respondent had not raised any objection by filing his

counter statement and it itself proves that he accepted the relationship

between himself and the appellant as employer and employee.

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9. But the counsel for the Insurance Company submits that merely

silence on the part of the 1st respondent, it could not sufficient to infer that the

appellant has worked as a driver under him. The appellant bound to prove this

fact with independent material evidence in order to get compensation.

Further, he submitted that the vehicle was not insured at the time of the

accident, apart from that the seating capacity of the vehicle is only one. But at

the time of accident, two persons were in the vehicle. It is clear, that it is

violation of policy. Besides the vehicle was also not driven by the appellant at

the time of the accident.

10. On the facts reveals that the appellant was not driven the vehicle

at the time of the accident and the vehicle also not registered as per the

evidence of RTO. Evidence of R.W.2 as follows:

“ Kjy; vjph; kDjhuUf;Fr; brhe;jkhd TN 34 D 7088 gpdd ; plL ;

gjpt[ vz; bfhLf;fg;gl;L g[jpa bey; mWtil bra;ak[ ; kpcd; v';fs; 2k; vjph;kDjhuh; epWtdj;jpy; 29/12/2005 Kjy; 28/12/2006 Koa cs;s fhyj;jpwF ; fhg;g[Wjp bra;ag;gl;oUe;jJ/ me;j mWtil bra;ak[ ; ,ae;jpuj;ij mjd; chpikahsh; 1k; vjph;kDjhuh; 28.01.2006 e; njjp Xl;or; brd;Ws;shh;/ mg;nghJ me;j nkhl;lhh; thfdj;jpy;

kDjhuiua[k; gazpahf Vw;wpr; brd;Ws;shh;/ me;j thfdj;jpw;F Page No.5/8

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1288 of 2014

kDjhuh; xl;Leh; my;y/ me;j mWtil ,ae;jpu thfdj;jpy; Xl;Leh; my;yJ ntW egh; vtiua[k; Vw;wpr; bry;y KoahJ/ rl;lKk; mDkjpg;gJ ,y;iy/ me;j nkhl;lhh; thfdj;jpy; ntW egh; mkh;e;J bry;y ,Uf;ifa[k; ,y;iy/ Evidence of R.W.3 as follows:

“ehd; jpUr;br';nfhL tl;lhug; nghf;Ftuj;J mYtyfj;jpy; ,sepiy cjtpahsuhfg; gzpgh[ pe;J tUfpnwd;/ ,e;ePjpkd;wj;jpypUe;J vdf;F miHg;ghid te;Js;sJ nfl;fg;gl;Ls;s Mtz';fspy; xd;W kl;Lk; jhf;fy; bra;Js;nsd;. kw;wit mYtyfj;jpy; ,y;iy 28/01/2006 md;W ele;j nkhl;lh; thfd tpgj;jpy; rk;ge;jg;gl;l TN 34 D 7088 vd;w bey; mWf;Fk; bkcd; v';fs; mYtyfj;jpw;F Ma;t[f;fhft[k;. mwpf;iff;fhft[k; mDg;gg;gl;lJ/ mJ Ma;t[fF ; te;j nghJ jhd;

me;j thfdk; gjpt[ bra;ag;gltpy;iy vd;gJ bjhpate;jJ/ me;j thfdj;ij Ma;t[ bra;jjw;fhd Ma;twpf;if jhf;fy; bra;ag;gLfpwJ/ me;j thfdk; gjpt[ bra;ag;glhky; cgnahfg;gLj;jg;gl;ljw;fhf mjd; chpikahsh; kPJ tHf;F bjhLf;fg;gl;lJ gjpt[ bra;ahky; thfdj;ij cgnahfg;gLj;jpa Fw;wj;jpw;fhf mjd; chpikahsh; ePjpkd;wj;jpy; mguhjk; brYj;jpas ; hh;/” [ s

11. So the evidence of R.W.2 and R.W.3 clearly proves that the

seating capacity of the vehicle is only one person and the vehicle was not

registered at the time of accident and the vehicle also not driven by the

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appellant. So the appellant not proved that he was employed as a driver at the

time of the accident. Hence, the Labour Commissioner rightly concluded this

aspect, which does not warrant any interference by this Court.

12. Accordingly, this Civil Miscellaneous Appeal is dismissed, and

the order of the Workmen's Compensation Commissioner cum Deputy

Commissioner of Labour, Salem is confirmed. No Costs.

18.02.2021 rri Index : Yes/No Speaking Order: Yes/No