®iil&%^;illi%l®liiif:ilillp|% ;'€^^^:'u^'.;:^":;;-/'^-^^'.^''f'^s^^:.:'^^ Bii^ ^: HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON'BLB I.M. QUDDUSI & HON*BLB N.K. AGARWAL, JJ M. A(C l No. 349 of 2010 APPBARANCE: ys. Mr. Uttam. P&ndey, counsel for the appellants. Mr. Shivendu Pandya, counsel for respondent no. 1. Mr. Sudhir Agrawal, counsel for respondent no.3. PCTl.M.QUDDUM.J ORDBR (ORALI (26.10.2010) 01. This appeal has been filed by the Clamiaats against the impugned Order dated 13.08.2009 passed by the APPELLANTS 1 Smt. Sangita Tandon, aged about 24 years, Wd/o Late CIimtamard Taadon (wife of deceased) 2 Ku. Katima Tandon, aged about 2 V2 years, D/o Late Chiatainani Tandon, beiag ininor represented through niother and natural guardian, appeUaat no. 1. Both residents of village AiiiUdih, P.S. Old Bhilai, TahsU Pataa, Distnct Durg (C.G). RBSPONDBNTS 1. Tunnalal Tandon, aged about 46 years, s/o Jhaduraoi Taadon, R/o village AmUdih, P.S. Old Bhilai, TahsU Patan, District Durg (C.G). 2. The Oriental Insurance Conipany Ltd., through Branch Manager, Branch No.2 Madiaa Manzil, First Floor, Jail Road, Katchan Chowk, Raipur, Post & District Raipur (C.G) / Through the Divisional Manager, The Oriental Insurance Corapany Ltd., Paroiariand Bhawaii, Dr. Rajendra Prasad Chowk, G.,E., Road, Raipur Post & Distnct Raipur (C.G). Couimissioner for Workmen's Coiapensation, Labour Conrt, Durg (C.G) in Case No. 157/W.C. Act/Fatal/200730/2008 dismissiag the claim made by the appellants. 02. Brief facts of the case are that Respondent no.l was the owner of Tractor bearmg Regn. No. C. G.04-Z. D/5614. Non- applicaat no. 2 is iasurer. On 04.8.2007 ChiatamaniTandon (deceased) was cultivating the field ofone Deenbandu Bharti by said Tractor on the instructions of the owner that is respondent no.l. While cultivatiag fhe field, the Tractor tumed turtle ia which Chiatamani was pressed as a result of which he sustaiaed serious iajuries. He was admitted ia Govt. Medical hospital, Durg where the doctors declared him dead. There was no negligence on the part of deceased, but crime was registered agaiast him by the PoUce. At the time of accident, the deceased was aged about 30 years aad was earning Rs.3000/- per month and an aUowance of Rs.50/- per day which he is getting for 20 days ia a month. The appeUaats beiag claunants fiiled appUcation u/s 22 of the Workmen's Compensation Act, 1923 for getting compensation ofRs.4,15,940/- from the non-appUcants. 03. The learned Commissioner, Workmen's Compensation, held that the deceased has died not as a result of accident occurred whUe workuig under non-applicaat no.l aad therefore rejected the claim made by the appeUaats. 04. We have heard learned counsel for the parties at length aiid have also perused the records ofthe Commissioner. 05. There is no evidence on fhe side of Insurance Coinpaay fhat the deceased was not aa einployee of the owner though it is admitted by fhe owner of fhe Tractor Tiinnalal ia his statement that the deceased was his real brofher who was eniployed by him as driver of the tractor aad was beiag paid Rs.3000/- per niontti. On fhe date of accident, he was deputed ia the Tractor as driver to level the field of one Deenbandu Bharti for tiUiag purpose. It also appears that initiaUy the deceased was owner of the Tractor which was piirchased on 25.01.2000 but later on the same was traasferred to Tunnalal on 22.05.2007 that is 2-3 months before the date of accident. Therefore, ia absence of aay other evidence contrary to the evidence of the owner of the Tractor, it caimot be said that the deceased was not ao. einployee of the owner being his real brother. The widow of tiie deceased has also stated fhat the deceased was an einployee of fhe owner of the Tractor. Therefore, the finding given by the Commissioner, Workmen's Conipensation ia this rcgard is peiverse and imaginaiy because of the reason that the deceased being rcal brother of the owner of the Tractor cannot be an einployee. The deceased was havnig a driviag license and was deputed to drive the Tractor by his Brother who was owner of the said Tractor. We carmot say at this stage that what were the fm.ao.cial circuiastaaces of the deceased but he sold the tractor to his brother and got employment under him to drive fhe said tractor on monthly wages of Rs.3000/- and Rs. 1000/- as allowance, It has also conie ia the stateinent of the owner Tin.nulal that he used to ^•K^ss?y' ^^^^iii^ll '^€:; :'%- ^^^^^.^ aad on the date of accident fhe land of Deenbandhu Bharti was being cultivated by leveUng the land soU (Matai). 06. In view of fhe above, we are of the optaion that the findings drawn by the Commissioner, Workmen's Coiapensation are not sustainable and therefore, are Uable to be set aside. Hence, we are of the opmion tiiat the inatter requires reconsideration at the level of Cooiinissioner, Workmen's G3nipensation. 07. Therefore, we allow this appeal ia part aad set aside the impugned award aud remit the niatter back to the Coimnissioner, Workmen's Coinpensation who shall provide opportunity to adduce further evidence of fhe parties, tf aay as also to niake amendment ia the pleadings and to verify and further fiUng of the docuinents. Needless to mention that the claiin shall be restored to its Origiaal Nuraber aad shall be decided as early as possible afresh preferably within a period of six nionths froia the date of receipt of fhe Lower Court Record in the Ught of the dircction and obser^ations inade herein above. 08. The persons present here shall appear before the Comiaissioner, Worlanen's Conipensation conceraed on 22nd Noyember, 2010. ^3_ Sd/- LM.Quddusi Judge Sd/- N.K. Agarwal Judge Rao