Tmt Devagi vs Vasu
2023 Latest Caselaw 9961 Mad

                                                                           C.M.A. No.80 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 09.08.2023

                                                     CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               C.M.A.No.80 of 2022
                  1.Tmt Devagi
                  2.Minor Durga
                  3.Minor Balaji                               ...                  Appellants

                                                        Vs.
                  1.Vasu
                  2.The Divisional Manager
                  United India Insurance Company Limited
                  T.K.M. Complex,
                  Vellore – Katpadi Road,
                  Vellore – 632 004.                           ...               Respondents


                  Prayer: This Civil Miscellaneous Appeal is filed under Section 20 of The
                  Employees Compensation Act, 1923, against the order dated 11.07.2019
                  made in W.C.No.45 of 2015 (Old No.284 of 2009) on the file of the
                  Commissioner for Workmen's Compensation and Joint Commissioner of
                  Labour, Vellore.
                                        For Appellants  : Mr.C.Prabakaran
                                        For Respondents : Mr.P.Sanakara Narayanan
                                                          for R2
                                                          No appearance for R1

                  _____
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                                                                                C.M.A. No.80 of 2022



                                                     JUDGMENT

This Civil Miscellaneous Appeal has been filed challenging the

dismissal of the claim petition filed by the appellants.

2. The appellants filed claim petition in W.C No.45 of 2015 claiming

compensation for the death of one Kumar, who died in the accident that took

place on 08.12.2009.

3. According to the appellants the deceased was working as a driver in

the auto belonging to the first respondent. On the date of accident, the

deceased Kumar was driving the auto from Katpadi Railway Station

alongwith passengers. While he was waiting at Sripuram Kovil, after

dropping the passengers at Ariyur, the driver of another auto bearing

Regn.No.TN23 H 3961 drove the same in a rash and negligent manner and

dashed against the deceased. Due to the injuries sustained in the accident, the

said Kumar died in the hospital on 09.12.2009. Hence, the appellants filed

claim petition claiming compensation against the respondents.

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4. The first respondent filed counter statement admitting the averments

made in the claim petition.

5. The second respondent filed counter statement denying the

averments made in the claim petition. They also denied that the deceased was

working as driver under the 1st respondent; that the accident occurred during

the course of his employment and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st appellant examined herself as PW1 and

marked seven documents as Exs.P1 to P7. On the side of the respondent one

Vasu was examined as RW1. No document was marked.

7. The Tribunal, considering the oral and documentary evidence,

dismissed the claim petition holding that the appellants have not proved the

employer – employee relationship between the first respondent and the

deceased.

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8. Aggrieved by the said order of dismissal, the appellants have

preferred the instant appeal.

9. The learned counsel appearing for the appellants submitted that

though the appellants have stated that the deceased met with an accident

during the course of employment with the first respondent, the Labour

Commissioner had erroneously dismissed the claim petition. The learned

counsel further submitted that the deceased took the auto for dropping the

passengers and after dropping, while crossing the road, met with an accident.

In the light of such evidence let in by the appellants, Labour Commissioner

ought to have seen that the deceased died during the course of employment

and awarded compensation on that basis and prayed for allowing the appeal.

10. Per contra, the learned counsel for the respondent submitted that

the first respondent is the brother of the deceased. The claim petition is not

maintainable as the appellants have not established the employer – employee

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relationship with the first respondent and the deceased. Admittedly, the

accident took place due to the rash and negligent driving by driver of the

offending vehicle. However, no claim petition was filed as against the said

auto driver or the insurance company with whom the auto was insured. The

claim petition is frivolous and has been filed only to claim compensation

under the Employees Compensation Act and hence the Tribunal had rightly

dismissed the claim petition. Therefore, the learned counsel prayed for

dismissal of the appeal.

11. Though notice has been served on the first respondent and his name

is printed in the cause list, none appeared for the first respondent.

12. Heard the learned counsel appearing for the appellants as well as

second respondent and perused the materials available on record.

13. The admitted facts are that the deceased and the first respondent are

brothers. The first respondent is the owner of the auto which is said to have

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been taken by the deceased for dropping some passengers. The accident had

taken place while the deceased was crossing the road and another vehicle was

involved in the accident. FIR was registered against the driver of the

offending vehicle namely auto bearing Regn.No.TN 23 H 3961. It is seen

that the appellants have not pursued claim petition against the offending

vehicle. Considering the fact that the appellants have not proved the

employer – employee relationship between the first respondent and the

deceased, this Court is of the view that the Tribunal was right in dismissing

the claim petition. Though the first respondent has stated that the deceased

was working under him, no documentary evidence was produced to prove the

payment of salary or the employer – employee relationship. The Tribunal

also found that there is no evidence to establish that the deceased had taken

the auto during the course of employment and met with the accident. For all

the above reasons, this Court is of the view that the finding of the Tribunal

cannot be faulted and there is no reason to interfere with the said finding.

The appeal filed by the appellants is liable to be dismissed.

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https://www.mhc.tn.gov.in/judis C.M.A. No.80 of 2022

14. In the result, this Civil Miscellaneous Appeal is dismissed

confirming the order dated 11.07.2019 made in W.C.No.45 of 2015 (Old

No.284 of 2009) on the file of the Commissioner for Workmen's

Compensation and Joint Commissioner of Labour, Vellore. No costs.

09.08.2023 rgr Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

To The Joint Commissioner of Labour, Vellore.

2.The Section Officer, VR Section, High Court, Madras.

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https://www.mhc.tn.gov.in/judis C.M.A. No.80 of 2022

SUNDER MOHAN, J

rgr

C.M.A. No.80 of 2022

Dated: 09.08.2023

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