F.A.No.2140/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.2140 OF 2010 Shri Shaikh Siraj Shaikh Mohammad, Age 52 years, Occu.Driver, R/o Shirsoli, Taluka and Dist.Jalgaon ..APPELLANT (Original Claimant) Versus 1. Shri Jamil Abdul Sattar Ragrej (vehicle owner), Age major, Occu.Business, R/o House No.27, Islampura, Jalgaon 2. The New India Assurance Company Ltd., Through Branch Manager, The New India Assurance Company Ltd., Branch Office Khandesh Mill Complex, Jalgaon ..RESPONDENTS Mr M.M.Bhokarikar, Advocate for appellant Mr V.R.Mundada, Advocate for respondent No.2 Respondent No.1 served CORAM : MRS MRIDULA BHATKAR, J. DATE : 21st September 2011 ORAL JUDGMENT 1. Admit. 2. By this appeal, the appellant – original claimant is raising an exception to the order dated 2nd September 2010 passed by the Commissioner for Workmen’s Compensation and Judge, Labour Court, Jalgaon. Applicant was working as a driver with original opponent No.1. Opponent No.1 was the owner of the truck bearing registration No.MH-19/Z-1880. It wad admittedly insured and was having valid policy F.A.No.2140/2010 2 on the date of the accident. The accident took place on 18.7.2007 when applicant was driving the truck and going from Aurangabad to Phulambri. At 6.15 a.m. Near Khultabad Shivar, a Cruiser jeep coming from opposite side dashed to the truck. There were total 16 passengers traveling in the said jeep. The applicant-driver sustained injuries. His right knee cap was fractured. He filed claim application for Rs.2 lac and tendered evidence. However, the Commissioner for Workmen’s Compensation and Judge, Labour Court, Jalgaon negatived all the issues and dismissed the claim of the applicant. The first issue whether applicant was in the employment of opponent No.1 as a driver of the vehicle at the relevant time and second issue whether the accident took place and injuries sustained were in the course of said employment or not; were held negative. 3. The learned trial Judge has held that the applicant was one of the travellers of the Cruiser jeep, which met with an accident, as the name of the appellant is appearing in the list of injured travellers in the first information report. While appreciating this fact, the Judge of the Labour Court ought to have considered the other evidence and the applicant ought to have produced some documents showing that he was driving the vehicle at the relevant time. In the appeal, relevant documents are produced by the applicant. Moreover, as pointed out by the Counsel for the respondent – Insurance Company the degree of the disability and the loss of income is not properly assessed by the Court. F.A.No.2140/2010 3 4. Hence, it is the fit case to send back to the Labour Court to enable the applicant to tender proper documentary evidence and also examine any other witnesses to prove his case. Evidence of Medical Officer on the point of injury and disability is also required to be tendered. 5. The order passed by the Commissioner for Workmen’s Compensation and Judge, Labour Court, Jalgaon dated 2.9.2010 in W.C.A.No.32/2007 is set aside and the matter is remanded back to the Labour Court, Jalgaon. The Judge of Labour Court to decide the matter afresh, preferably by 31st March 2012 by giving opportunity to the applicant to tender proper documentary evidence including the evidence of Medical Officer and examining any other witness to prove his case. All issues are kept open and Commissioner to decide the matter afresh. 6. Appeal is partly allowed accordingly. ( MRS MRIDULA BHATKAR, J. ) (vvr/2140.10fa)