IN THE HIGH COURT^)FJUDICATURE OF CHHATTISGARH ATBILASPUR ^nM^n Q^ncN M.A.(C.)No...<T.^?...../2011 APPELLANT CLAIMANT ^v:.^-'>-' -c-y^- '^y>^/' ^1^< Vijay Kumar Uikey aged about 43 ye;£irs, S/o Late Shri Manrakhan Uikey, R/o Village Karutola, Post Chikhlakasa, Police station & Tahsil Balod, District Durg (C.G.) v ^' RESPONDENTS VERSUS NON-APPLICANTS ^- u > 1) Smt. Nemin Bai, aged about 40 yc<u-s, W/o Vijay Kumar Uikey, R/o Village Karutola, Post Chikhlaka-sa, Police station & Tahsil Balod, District Durg (C.G.) (Chief Employer of deceased Khoman Kumar Uikey) 2) Ifco Tokio General Insurance Company Limited, Through : Divisional Manager, Divisinal Office, Lalganga Shopping Mal, G.E. Road, Raipur (C.G.) 3) Smt Asha bai, aged about 40 years, W/o Shri Vijay Kumar Uikey, R/o Shikaripara Balod, Police station & Tahsil Balod, District Durg (C.G.) (Mother of deceased Khoman Lal Uikey) 4) Ku. Nilam Uikey, aged about 19 yearvS, D/o Vijay Kumar Uikey, R/o Village Karutola/ Post Chikhlakasa, Police station & Tahsil Balod, c^ sp^^/ District Durg (C.G.) (Sister of deceased Khoman Lal Uikey) Sandeep Kumar Uikey, aged about 15 years, S/o Vijay Kumar Uikey, (Minor through legal representative Sister Kumari Nilam Uikey D/o Vijay Kumar Uikey) R/o Village Karutola, Post Chikhlakasa, Police station & Tahsil Balod, District Durg ^ (C.G.) (Brother of deceased Khoman Lal Uikey) MEMO OF MISCELLANEOUS APPEAL UNDER SECTION 30 OF WORKMEN COMPENSATION ACT Appellant Claimant Respondent Non-Applicants HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. M.A.(c)No. 729/2011 Vijay Kumar Uikey Vs Smt. Nemin Bai and others ^v ^.^; Present: Mr. CK Sahu, counsel for the appellant. Mr.,Amrito Das, counsel for respondent No.2. ORDER (Orall (28th September, 2011) Per I.M. Quddusi. J This appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 19.3.2010 of the Commissioner for Workmen's Compensation Act, Labour Court, Durg (in short "the Commissioner") in Case No.40/2007 WC Act/Fatal, dismissing the claim petition of the claimant on the ground that though the death of the deceased was due to accident, but it was not during the course of his employment under the employer for which the deceased was engaged. 02) Brief facts of the case, as per claim petition, are that Khoman Kumar was working as driver of vehicle Mahindra Tractor bearing Engine No. NLN 7379 and Chassis No. NLN 7379, owned by respondent No.1. On 29.11.2006 the said tractor, which was being driven by Khoman Kumar, turned turtle near Danitola Mines at Balod- Rajhara road, as a result of which Khoman Kumar died on the spot. .Report of the accident was lodged at Police Station - Balod, whereupon after registering merg intimation, postmortem of the deceased was conducted. Respondent No.1 is the step-mother of the deceased, who is living separately from the appellant-father of the deceased and the deceased, on account of some family disputes. The deceased was getting Rs.100/- per day from respondent No.1 in lieu of his service as a driver. At the time of accident, the deceased was 20 •^ •-?:y -^ years of age. The appellant/claimant, who is father of the deceased, filed a claim petition under Section 10 ofthe Workmen's Compensation Act, 1923 (in short "the Act, 1923") for a total compensationof Rs.3,38,500/- under various heads. 03) However, learned Commissioner, after close scrutiny of the evidence adduced by the parties before it, by the impugned award dismissed the claim petition of the appellanVclaimant on the ground that death of the deceased was not during the course of his employment under respondent No.1 for which he was engaged. 05) We have heard learned counsel for the parties, perused the LCR as also the impugned award. 06) Upon perusal of the LCR, we have found that the deceased was driving the tractor in question. Though he was an employee of the owner of the tractor, but he was not engaged as driver and the driver of the tractor while coming back to owner's place, got down from the tractor on the way at his house and handed over the tractor to drive to the deceased and when the deceased was driving the tractor, the accident had taken place. In the written statement, the owner has accepted the fact of employment of the deceased under her. However, the findings given by the Commissioner in respect of engagement of the deceased as driver of the employer cannot be ruled out. Therefore, the claim petition before the Commissioner was not maintainable. However, if the claim petition was not maintainable, the claimants cannot be left remediless and therefore, we are of the opinion that liberty should be granted to the claimant to approach appropriate forum available to him i.e. the concerned Motor Accident Claims Tribunal by filing a claim petition under the relevant provisions of Motor Vehicles Act, 1988. 07) In view of the above, we dismiss this appeal, with liberty to the appellant/claimant to file a claim petition under the relevant provisions of the Motor Vehicles Act, 1988 before the concerned Motor Accident Claims Tribunal. ———^ Sd/- I.M.Quddusi Judge Sd/- G.Minhajuddin Judge ^