14. fa 772­10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 772 OF 2010 Smt. Sujata Sunil Mane & Ors .. Appellants V/s. Shri. Shrikant Sambhaji Patil & Anr .. Respondents Mr. S.A. Rajeshirke for the Appellants Mr. Sandeep S. Jiniswale for Respondent No. 2 CORAM : A.S. OKA, J. DATE : 8th JULY, 2011. ORAL JUDGMENT: 1. Heard learned counsel for the appellants and learned counsel for second respondent. 2. This appeal under Clause (a) of sub-section 1 of Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the 'said Act'). The appellants made an application before the learned Commissioner of the Workmen's Compensation seeking compensation under Section 4 of the said Act. The compensation was claimed by filing an application under Section 22 of the said Act. The first appellant is the widow of deceased Sunil Manohar Mane. Second and third appellants are the minor children of the deceased. The case made out by the appellants is that deceased Sunil was an employee of the 1 14. fa 772­10.doc first respondent. He was employed as a driver of a truck. At the relevant time, the deceased was driving a truck. The accident occurred on 30th December 2007. The first respondent entrusted the job of delivering goods from depot to M.I.D.C. to the deceased. The case made out by the appellants is that the deceased along with the help of others loaded the goods in the truck and he was in the process of covering the goods by a canvass cover. While he was tying a rope, he fail down and sustained multiple fractures. While he was being taken to the hospital, he succumbed to his injuries. The case made out by the appellants was that the deceased was drawing a salary of Rs. 4000/- per month. 3. Written statement was filed by the first respondent. The second respondent is the Insurance Company. The first respondent admitted the case made out by the appellant but he disputed the age of the deceased. The second respondent also filed a written statement. The second respondent denied that the deceased died due to employment injury. It was contended that it was not the duty of the driver to load the goods in the truck and to cover the goods by a canvass cover. Another contention raised was that the deceased was not possessing a driving licence. 4. Learned Commissioner held that the deceased died due to 2 14. fa 772­10.doc employment injury and proceeded to grant compensation of Rs. 3,53,580/-. The learned Commissioner directed the first respondent to pay interest at the rate of 12% per annum with effect from 30th April 2010 and also directed the first respondent to pay penalty of Rs. 1,76,790/-. However, the learned Commissioner held that the appellants could not prove that the deceased was holding a valid driving license and therefore, the application was dismissed as against the second respondent. 5. When this appeal came up before this Court for admission, a Civil Application was made by the appellants seeking permission to file the original driving licence on record. The appellants were permitted to produce the original license along with the photographs of the deceased. This Court passed an order dated 19th October 2010 on the said Civil Application. Paragraph 5 of the said order reads thus: " After the parties adduce the evidence, the learned Commissioner will have to record findings on the following aspects:- (a)Whether the driving licence produced by the Appellants is genuine? (b)Whether the said licence was held by the deceased Sunil Manohar Mane? (c) Whether the said licence was valid on the date of the accident?" 3 14. fa 772­10.doc On the basis of the said order, now the learned Commissioner has recorded a finding holding that the licence produced by the Appellants at Exhibit 266 is genuine. The learned Commissioner also recoded the finding that the licence was valid on the date of the accident. This finding has not been challenged by the second respondent. 6. On the basis of these findings, the learned counsel for the Appellants urged that modification may be made in the impugned judgment and order and even second respondent be directed to pay interest and penalty apart from compensation 7. Learned counsel for the second respondent submitted that under Clause (a) of sub-section 1 of Section 30 of the said Act, the present appeal is not maintainable. He submitted that in any event, loading of the goods in the truck and covering the same with canvass cover is not a part of the job of the driver and therefore, it cannot be said that the deceased died due to the injury arising during the course of employment. 8. I have carefully considered the submissions made by the learned counsel. The first submission is regarding the maintainability of the appeal. Clause (a) of sub-section 1 of Section 30 of the said Act reads thus: " (1) An Appeal shall lie to the High Court from the 4 14. fa 772­10.doc following orders of a Commissioner namely,- (a) an order awarding as compensation a lump sum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (b)........................" In the claim application under Section 22 of the said Act, the appellants sought compensation from both the first as well as second respondent. The claim made by the appellants as against the first respondent was allowed but the same was disallowed against the second respondent. Thus, on plain language of clause (a), the present appeal will be maintainable as the claim as against the second respondent has been disallowed. 9. The deceased was entrusted with the responsibility of transporting the goods by a truck. As a part of his duties, the deceased had to load the goods. For safe carriage of the goods, he was in the process of covering the goods by a canvas cover and in the process of tying ropes, he fail down and suffered injury. It is impossible to say that the work of helping others in loading the goods in the truck and the work of covering the goods by canvass cover was not a part of the duty of the deceased who was working as a driver of the truck. 10.Thus, the second respondent will have to be treated as liable 5 14. fa 772­10.doc to pay compensation. There is no dispute about the insurance cover. 11.As far as prayer made for grant of penalty is concerned, the learned counsel for the appellants on instructions has not pressed the same. 12.As far as prayer for interest is concerned, the appellants could not establish that the deceased was possessing a valid driving licence on the date of the accident. Only during pendency of this appeal, that the licence was produced. Therefore, the second respondent can be held liable to pay interest only from the date fixed by this Court for deposit of the amount. 13.Hence, I pass the following order: (a)The impugned judgment and award is modified and it is directed that the first and second respondent shall be jointly and severally liable to pay the compensation of Rs. 3,53,580/- to the appellants. The award made against the first respondent regarding payment of penalty and interest is maintained. (b)Time of three months is granted to the second respondent to deposit the compensation of Rs. 3,53,580/ before the learned Commissioner. If the second 6 14. fa 772­10.doc respondent fails to deposit the same within three months from today, the second respondent shall be liable to pay interest at the rate of 12% per annum on the compensation amount from the date of penalty till the date of deposit. [ A.S. OKA, J ] 7 14. fa 772­10.doc 8