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Sampuran Singh Vs. Kubrabi and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in1(1985)ACC157
AppellantSampuran Singh
RespondentKubrabi and ors.
Excerpt:
.....(5) air bom r held per incuriam]. - 7 can be made liable to make payment only under the circumstances stated in this section and the finding accordingly recorded by the commissioner is just and perfectly legal......of employment of the appellant.2. the respondents 1 to 6 claiming to be the dependents of the deceased filed an application for compensation under the provisions of workmen's compensation act against the appellant-original n.a. no. 1 who being the employer of the deceased was liable to pay rs. 8000/- to the respondents 1 to 6 under the provisions of the act. they also joined the respondent no. 7 as n.a. no. 2 in original application as they learnt that the said truck was insured with it under a comprehensive risk.3. the appellant did not file any written statement. the respondent no. 7 filed written statement and submitted that though the deceased sk. wazir was an employee of the appellant, he was not being paid rs. 225/- p.m. as salary. he denied the relationship between the.....
Judgment:

G.A. Paunikar, J.

1. The respondent No. 1 is the widow of deceased Sk. Wazir and the respondents 2 to 6 are their children. The respondent No. 6 is the mother of the deceased. All these respondents were exclusively depending on the deceased. The deceased was an employee of the appellant-original N.A. No. 1 as his driver and was having a driver's licence. He was in the regular employment of the appellant for five months preceding his death. The appellant was paying him Rs. 225/- p.m. as wages. The appellant was doing the business of operating trucks. On 17-9-1973 the deceased was on duty of goods truck MHV-1975 owned by the appellant. This truck met with an accident at Kamareddi in Andhra Pradesh. The deceased had sustained injuries in that accident and he died as a result of those injuries in the accident arising out of and in the course of employment of the appellant.

2. The respondents 1 to 6 claiming to be the dependents of the deceased filed an application for compensation under the provisions of Workmen's Compensation Act against the appellant-original N.A. No. 1 who being the employer of the deceased was liable to pay Rs. 8000/- to the respondents 1 to 6 under the provisions of the Act. They also joined the respondent No. 7 as N.A. No. 2 in original application as they learnt that the said truck was insured with it under a comprehensive risk.

3. The appellant did not file any written statement. The respondent No. 7 filed written statement and submitted that though the deceased Sk. Wazir was an employee of the appellant, he was not being paid Rs. 225/- p.m. as salary. He denied the relationship between the deceased and the respondents 1 to 6 for want of knowledge and also denied their right to claim compensation as dependants of the deceased. He admitted that the deceased died as result of injuries sustained by him in the accident which took place on 17-9-1973. He also denied that the deceased died as a result of abandonment of his employment and due to his own rash acts. The respondent No. 7 thus denied the claim of the respondents 1 to 6 and his liability.

4. The learned Commissioner for Workmen's Compensation framed necessary issues in view of the pleas of the parties. The respondents 1 to 6 examined Kubrabi as A.W. t, Sk. Hasan as A.W. 2. The appellant examined himself. The respondent 7 did not examine any witness. After appreciating both oral and documentary evidence on record, the learned Commissioner held that the deceased was receiving Rs. 160/- p.m. as wages as a goods truck driver from the appellant; the deceased died as a result of injuries sustained in the accident arising out of and in the course of his employment as employee of the appellant; the respondents 1 to 6 being dependants of the deceased are entitled to get compensation of Rs. 7000/- under the Workmen's Compensation Act; and that no order directing the respondent No. 7 to pay the amount of compensation to the respondent 1 to 6 can be made in these proceedings vide order dt. 11-6-1976. This order is challenged in this appeal by the appellant the original N.A. No. 1 before the Commissioner.

5. The learned Counsel for the appellant Shri Sohoni contended that the deceased was working with the appellant merely as a conductor for 8 to 10 days prior to his death and hence he was driving the trucks unauthorised hence the appellant is not liable to pay the respondents 1 to 6 the compensation under the Act. It is not possible to accept his submissions. The appellant did not file written statement before the Commissioner in reply to the applications filed by the respondents 1 to 6. The Commissioner has wrongly stated that both the non-applicants i.e. the appellant and the Respondent No. 7 filed their written statement Ex. 10. This statement is filed by the respondent No. 7 only. Thus the appellant did not dispute the case of the respondents 1 to 6. The respondent No. 7 in para 7 of the written statement Ex. 10 stated that the deceased lost control over the vehicle owing to careless driving and hence the accident took place. Their contentions do corroborate the case of the respondents 1 to 6 that the deceased had driving licence (Ex. 22) in the name of the deceased since 1970 and it was renewed in April 1973. The respondents 1 to 6 examined Kubrabi at Ex. 11 and her husband's brother Sk. Hasan at (Ex. 21). They fully prove the case of the respondents 1 to 6. The appellant is examined at Ex. 22 and stated that he was paying Rs. 15/- per week to Sk. Wazir for the first time in his deposition but no written statement was filed by him. He admits that he owns two trucks and pays income-tax but did not produce account books. He admits to have received the notice for payment of compensation from the respondents 1 to 6 but he did not reply and no reply notice is filed. Under the circumstances I hold that the Commissioner has rightly held that the deceased was the truck driver of the appellant getting the salary of Rs. 160/- p.m. in view of the unchallenged and uncontradicted testimonies of Kubrabi and Sk. Husan on behalf of the respondents 1 to 6 and that these respondents are entitled to get compensation of Rs. 7000/- as dependants of the deceased.

6. The learned Counsel for the appellant then urged that the order of payment of compensation should have even passed only against the respondent No. 7 as this respondent had insured the truck of the appellant under comprehensive risk. This contention has to be rejected for the simple reason that though the order in this respect was against the respondents 1 to 6 the respondents 1 to 6 did not prefer appeal or cross-objection against the finding. The appellant is, therefore, incompetent to urge this ground. Even otherwise I hold that in view of Section 14(1) of the Workmen's Compensation Act, the respondent No. 7 can be made liable to make payment only under the circumstances stated in this section and the finding accordingly recorded by the Commissioner is just and perfectly legal.

7. Shri Sohoni then cited the following rulings in support of his contentions aforesaid :

(1) Assam Corporation and Anr. v. Binu Rani AO and Ors. A.I.R. 1975 Gauhati 3.

(2) Madras Motor and General Insurance Co. Ltd. Madras v. A.V. Subramanian and Ors., : AIR1975Mad7 .

(3) Mohanlal Prabhuram v. Fine Knitting Mills Co. Ltd. Ahmedabad, A.I.R. 1960 Bom 387.

I respectfully submit that the first two rulings are irrelevant and they do not apply to the facts in this case under the Workmen's Compensation Act. The third one is under the Workmen's Compensation Act. In this case a workman while engaged in carrying out his day to day duties in a department of his employer's mill was a helpless victim of an assault which was initiated by one of the employees of the mill who was assisted by three outsiders. In this assault the workman's hand was fractured. It was held that the injuries suffered by the workman were incidental to his employment and that the accident must be taken to have arisen out of the employment of the workman. The facts in the present case being totally different this ruling is not at all helpful to the appellant.

8. In the result, there is no merit in this appeal and it is dismissed with costs. The appellant shall also pay the costs of the respondents 1 to 6. No costs are awarded to the respondent No. 7 as he is unrepresented.


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