THE HONOURABLE SRI JUSTICE M.LAXMAN
CIVIL MISCELLANEOUS APPEAL No.214 of 2018
JUDGMENT:
1. The present civil miscellaneous appeal has been directed
against order dated 05.10.2017 in E.C.No.115 of 2012 on the file of
Commissioner for Employees' Compensation and Assistant
Commissioner of Labour -IV (FAC), Hyderabad (hereinafter referred
to as 'the Commissioner'), wherein and whereby, the claim of
respondent Nos.1 and 2 herein, for grant of compensation for death
of their son B. Raju (hereinafter referred to as 'deceased') during his
employment in lorry vehicle bearing No. AP 29 TA 7019 was allowed
granting compensation of Rs.5,29,442/- along with interest at 12 %
per annum on compensation amount of Rs.5,26,390/- from
17.09.2012 till the date of realization. Aggrieved by the same, the
present appeal is at the instance of insurance company i.e.,
opposite party No.2 in the proceedings before the Commissioner.
2. The case of the respondent Nos.1 and 2 herein, who are
claimants before the Commissioner is that the deceased was
cleaner of lorry bearing No. AP 29 TA 7019 and he was employed as
cleaner by respondent No.3 herein and appellant herein was
insurer of lorry. On 17.08.2012, the deceased went for duty as 2 ML,J CMA_214_2018
cleaner on the above said lorry. After unloading material at
Moosapet, the deceased was taking rest in the cabin and while in
sleep suffered from heart attack and died. According to respondent
Nos.1 and 2, heart attack was caused due to stress, strain and
restless duties and sleepless nights in the course of employment.
In this regard, First Information Report (FIR) No.354 of 2012 was
registered by Police, PS Balanagar. Further, the policy issued by
the appellant was in force covering the workers employed by the
respondent No.3, therefore, respondent Nos.1 and 2 filed the
present claim before the Commissioner claiming compensation.
3. Respondent No.3 herein has not contested the proceedings
before the Commissioner. The appellant herein filed its counter
pleading that there is no employee and employer relationship
between the deceased and respondent No.3. They further
contended that the death was on account of suicide and hence, the
appellant company is not liable to pay any compensation and also
denied age and monthly income of the deceased.
4. On the basis of the above pleadings, the Commissioner has
framed the following issues for consideration:
"1. Whether the deceased died due to the injuries sustained in the accident on 16.08.2012 during the course and out of his 3 ML,J CMA_214_2018
employment as a cleaner on the lorry bearing No. AP 29 TA 7109 under the employment of the 1st opp. party?
2. If yes, who are liable to pay compensation to the dependants of the deceased? and;
3. What is the amount of compensation entitled by the dependants of the deceased?"
5. In support of their case, respondent Nos.1 and 2 examined
A.W.1 and got marked Exs.A-1 to A-9 before the Commissioner.
The appellant examined R.W.1 and got marked Exs.B-1 to B-3 and
respondent No.3 remained ex parte.
6. The Commissioner after appreciating the evidence on record
found that there is employee and employer relationship between
the deceased and respondent No.3. Accordingly, granted
compensation to respondent Nos.1 and 2. Aggrieved by the same,
the present appeal is filed.
7. Heard both sides.
8. In the light of the above submissions the following point
emerged for consideration before this Court:
"Whether the findings of the Commissioner in holding that there was employer and employee relationship between the deceased and respondent No.3 suffer from any perversity, so as to give raise to substantial question of law?"
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Point:-
9. The evidence on record shows that the regular cleaner of the
lorry lodged FIR. The final report shows that the deceased died on
account of consumption of unknown poisonous substances. The
FIR clearly demonstrates that deceased boarded lorry in search of
employment. The evidence shows that the driver promised to give
employment to the deceased over other lorry, but the deceased died
in cabin in suspicious circumstances. Subsequent investigation
revealed that he died due to consumption of poison.
10. Learned counsel for appellant contended that the evidence
produced by respondent Nos.1 and 2 before the Commissioner
clearly demonstrates that deceased was not employed by the owner
of the lorry and in fact, cleaner, who is the friend of deceased
invited the deceased for providing employment on other vehicle,
with assistance of driver and not on the lorry vehicle bearing
No. AP 29 TA 7019. The Commissioner without looking into such
evidence relying upon the judgment of Bombay High Court in
Mohd. Anis Mohd. Elyea Khan v. Iltiza & Co. and another1 held
that there is valid employment and accordingly compensation was
1 2000-I-LLJ-1304.
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awarded, which according to the learned counsel for appellant
suffers from perversity.
11. Learned counsel for respondent Nos.1 and 2 submitted that
there is ample evidence on record to show that the deceased was
employed by the driver and the driver had authority to employ said
person and there is valid existence of employee and employer
relationship between deceased and respondent No.3. Therefore, the
Commissioner by placing reliance on the judgment cited supra has
rightly held existence of relationship of employee and employer and
such findings do not suffer from perversity.
12. A scrutiny of the evidence on record clearly demonstrates that
the FIR was lodged by the cleaner of the lorry and the deceased was
not shown as cleaner of vehicle. Further, the FIR shows that the
deceased boarded lorry in search of employment. In fact, the driver
promised to provide employment to the deceased on another
vehicle. Respondent Nos.1 and 2 have not examined either owner
or driver of the lorry to show that the deceased was employed either
by driver with express permission of owner or by owner of the
vehicle. Without such evidence, it cannot be said that the deceased
was employed by respondent No.3.
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13. In the judgment relied upon by the Commissioner, the driver
was holding express authority to select employee of his choice.
Such evidence is not there in the present case. In fact, the
documents placed by respondent Nos.1 and 2 before the
Commissioner clearly demonstrates that the deceased boarded
lorry in search of employment and same was promised by the
driver on another vehicle. The evidence do not show that driver
employed deceased on the lorry owned by respondent No.3. This
was not considered by the Commissioner. Contrary to this
evidence, the Commissioner by his self-assumption held that there
was employee and employer relationship. Such findings suffer
from perversity.
14. Learned counsel for the appellant further contended that
respondent Nos.1 and 2 withheld evidence in respect of
postmortem report as well as forensic report. It is unfortunate that
the appellant i.e., the insurance company has also not filed forensic
report. On contrary, the final report clearly demonstrates that the
deceased died on account of poison, but it is contrary to the case
set up by respondent Nos.1 and 2 that the deceased died on
account of heart attack. There is no medical evidence supporting 7 ML,J CMA_214_2018
such claim. The final report clearly demonstrates that death is not
on account of heart attack, but it is on account of suicide attempt
made by the deceased. These aspects were not considered by the
Commissioner. Such finding suffers from perversity and requires
to be set aside.
15. In the result, the civil miscellaneous appeal is allowed and
consequently, the order dated 05.10.2017 in E.C.No.115 of 2012 on
the file of Commissioner for Employees' Compensation and
Assistant Commissioner of Labour -IV (FAC), Hyderabad, is set
aside. The appellant is permitted to withdraw 50% of
compensation amount which was deposited by them and lying
before the Commissioner. Further, the appellant is permitted to
take steps for recovery of balance amount of compensation which
was deposited by them before the Commissioner and withdrawn by
respondent Nos.1 and 2 on the strength of the award. There shall
be no order as to costs. Miscellaneous petitions, if any, pending,
shall stand closed.
______________ M.LAXMAN, J Date: 02.01.2023 GVR
