M/S.Bajaj Allianz General ... vs Tmt.Thenmozhi
2021 Latest Caselaw 5458 Mad

                                                                               C.M.A.No.1770 of 2018


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 02.03.2021

                                                       CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.1770 of 2018
                                                         and
                                                C.M.P.No.13697 of 2018

                     M/s.Bajaj Allianz General Insurance Company Ltd.,
                     'People's Park' III Floor, Door No.11, (Office No.6-A),
                     Govt. Arts College Road,
                     Coimbatore – 641 018.                                        ..Appellant
                                                         Vs.

                     1.Tmt.Thenmozhi
                     2.Minor Vijeth
                     3.Thiru Jayendra Vignesh
                     4.Tmt.Malarkodi
                     5.Thiru Velusamy                                          ..Respondents

                     Prayer : Civil Miscellaneous Appeal filed under Section 30 of the
                     Employees' Compensation Act, 1923 against the Final Award dated 7th
                     May, 2018 passed in E.C.No.114 of 2015 (Old E.C.No.107 of 2014), by
                     the learned Commissioner for Employees Compensation, Conoor,
                     Nilgiris.
                                      For Appellant    : Mr.J.Michael Visuvasam

                                      For Respondents : Mrs.Kaithamalai Kumaran for R1&R2
                                                        R3 to R5 -Exparte vide Court order
                                                        dated 03.01.2020

                     1/8
https://www.mhc.tn.gov.in/judis/
                                                                                  C.M.A.No.1770 of 2018




                                                    JUDGMENT

The Insurance Company is the appellant challenged the final

Award dated 07.05.2018 passed in E.C.No.114 of 2015.

2. The substantial question of law raised in the present appeal is

that whether the findings of the Commissioner that the alleged accident

had occurred in the course of and out of employment can be sustained,

merely because the Late Prathap was driving the car of the third

respondent, when the car itself was used for 'personal purpose'? In other

words, the claimants are not able to establish the employer and

employee relationship as well as the accident occurred during the course

of employment, which is mandatory requirement under the provisions of

the W.C.Act, more specifically, Section 3 of the Act.

3. The claim petition was filed by the respondents stating that on

24.07.2011 as per the instructions of the owner of the vehicle

Mr.Jayendra Vignesh, the deceased was travelling in the car bearing

Registration No. TN 33 AP 7926 from Erode to Asanoor. The owner of

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1770 of 2018

the vehicle, his friends and relatives were travelled in the said car. The

said car proceeds on Sathy to Mysore main road from North towards

south at about 2.30 pm, when the car came near Kollegal Privu road,

under unavoidable circumstances the said car dashed against one

Parapet wall which was constructed near of the road side. As a result of

the sudden accident, the said car driver Prathap and two other sustained

grievous injuries and they were immediately taken to Sathy Government

Hospital and two persons died.

4. The claim petition was filed with reference to the documents as

well as the evidences produced.

5. The learned counsel appearing on behalf of the appellant

Insurance Company relied on the First Information Report which reads

as under:

12/ Kjy; jfty; mwpf;ifapd; RUf;fk;

“ehd; gphpz;o'; kw;Wk; tpsk;gu epWtdk; elj;jp tUfpnwd;/ new;W vdJ ez;gh;fs; tp/gpujhg;. ,s';nfh. tonty;. rk;gj;. nkhgp Mfpnahh; xU fhhpYk;. ehd; kw;Wk; uh$h vd;fpw rz;Kfuh$h. ghyh$p. rpj;nj!;tud; Mfpnahh;

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1770 of 2018

xU fhhpYk; te;jpUe;njhk;/ eh';fs; bgl;nuhy; g';f; bf!;l; mt[rpy; j';fpapUe;njhk;/ ,d;W 24/07/2011e; njjp gfy; 2/25 kzpf;F Ford IKON TN 33 AP 7926 vd;w vz;Qqs;s tz;oapy; gpujhg; vd;gth; Xl;lt[k ;. mtUf;F ,lJ g[wk; rPlo ; y; ,s';nfht[k;. gpd;g[wk; rPlo ; y; tonty;. rk;gj;. nkhgp Mfpnahh; cl;fhh;e;Jbfhz;L MrD}h; Rw;wpg;ghh;f;fyhk; vd;W fhiu vLj;Jf;bfhz;L fpsk;gpndhk;/ ehDk;. uh$h. ghyh$p. rpj;njc&;tud; Mfpnahh; !;nfhlh fhh; TN 37 AM 1416 vd;w vz;Qqs;s tz;oapy; cl;fhh;e;J mth;fSf;Fg; gpd;dhy; ikR{h; to rf;jp bry;Yk; N H209 bkapd;

                     nuhl;oy;                   tlf;nfapUe;J                       bjw;F                 nehf;fp
                     brd;Wbfhz;oUe;njhk;/                            Kd;dhy;          brd;Wbfhz;oUe;j
                     IKON             fhiu          Xl;or;brd;w            gpujhg;        nkw;go            fhiu
                     ntfkhft[k;.                       m$hf;fpuijahft[k;                         Xl;or;brd;W
                     bfhs;nsfhy;                 gphpt[       nuhl;oy;            ,lJ           g[w        Xukhf

fl;lg;gl;oUe;j bgah;g;gyif gjpj;j jpl;od;kPJ ga';fukhf nkhjptpl;lJ/ eh';fs; v';fs; fhiu epWj;jptpl;L Xor;brd;W ghh;f;f IKON fhiu Xl;or;brd;w gpujhg; kw;Wk; fhhpy; gazk; bra;j midtUf;Fk; gyj;j mogl;oUe;jJ/ clnd 108 Mk;g[yd;!;f;Fk;. kw;bwhU gpiuntl; Mk;g[yd;!;f;Fk; nghd; bra;J tonty;. rk;gj;. nkhgp Mfpnahh;fis 108 Mk;g[yd;!; tz;oapYk;. gpujhg;. ,s';nfh Mfpnahh;fis gpiuntl; Mk;g[yd;!; tz;oapYk;

                     Vw;wp          rf;jp       muR        kUj;Jtkidf;F               mDg;gpitj;njhk;////
                     rpwpJ                neuj;jpy;           gpujhg;            ,s';nfh               Mfpnahh;
                     ,we;Jtpl;ldh;///” vd;W gjpt[fs; cs;sJ/


https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A.No.1770 of 2018

6. The facts received by the police seen after the accident, it is

contended that friends together stayed in a petrol bunk guest house and

thereafter, travelled in two cars for sight seeing. The said factum was

categorically narrated by the claimant himself who was travelling along

with the friends in another car. Therefore, the very fact stated in the First

information Report cannot be disbelieved. This apart, PW-2 who was a

eye-witness, even during the cross-examination has not spoken about the

truth. PW-2 states that at the time of accident who all are travelled in the

car were not known. However, PW-2 states that they have taken the car

belongs to Jayendra Vignesh and gone for sight seeing. Everywhere, it is

stated that the friends together went for sight seeing by staying in guest

house in petrol bunk.

7. On perusal of the facts and circumstances also reveals that they

had no other purpose except to travel for sight seeing along with friends.

In such circumstances, if at all the deceased claims to be a driver

engaged, then the onus lies on the claimant to establish that he was a

professional driver engaged to drive and employer and employee

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1770 of 2018

relationship existed at the time of accident. It is not even stated that the

deceased Prathap was appointed by the owner of the vehicle. The

appointment was not stated. The particulars regarding the appointment

or engagement also not been described and therefore, this Court is not

able to establish that employer and employee relationship existed.

8. It is mandatory under the statute that the employer and

employee relationship is to be established and the accident must be

occurred during the course of appointment. If these two requirements are

established by the claimants, then alone they are entitled for

compensation and liability can be fixed on the insurance company with

reference to the policy. The factum regarding the accident was

established, coverage of the policy was also established. However, the

facts as narrated in F.I.R and on perusal of the deposition of the

witnesses reveals that there was no employer and employee relationship

existed as well as the accident occurred during the course of

employment. When these factums are not established beyond any doubt,

the Deputy Commissioner of Labour has committed an error which is

apparent.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1770 of 2018

9. The Deputy Commissioner of Labour though arrived a

conclusion that the deceased was working as a driver and an employee

reasons furnished are contradictory and unacceptable, as their own facts

and circumstances were not considered in its proper perspective. When

the F.I.R categorically reveals that friends together travelled for sight

seeing in two cars and no where it is stated that he was a professional

driver engaged for the purpose of sight seeing or the appointment of

deceased was established with any acceptable grounds. The Deputy

Commissioner of Labour has committed an error in arriving a

conclusion that the deceased was an employee.

10. The learned counsel for the respondents/claimants made a

submission that they may be permitted to move an application under the

Motor Vehicles Act before the Claims Tribunal. However, it is for them

to work out the remedy available. As far as the award impugned is

concerned, the Deputy Commissioner of Labour has not appreciated the

facts and circumstances with reference to the mandatory requirements

under the statute.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1770 of 2018

S.M.SUBRAMANIAM, J.

Pns

11. According, the Award dated 07.05.2018 passed in E.C.No.114

of 2015 is set aside. Consequently, C.M.A.No.1770 of 2018 stands

allowed. No costs. Consequently, connected miscellaneous petition is

closed. The appellant Insurance Company is permitted to withdraw the

award amount by filing an appropriate application before the Tribunal

and the payments are to be made through RTGS.

02.03.2021 Pns.

Index: Yes/No Internet:Yes/No Speaking order/Non speaking order

To The Commissioner for Employees Compensation, Conoor, Nilgiris.

C.M.A.No.1770 of 2018

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