1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1063 OF 2009 Wamanrao s/o Ramrao Shinde ..APPELLANT VERSUS 1) Smt. Sunandabai w/o Bhimrao Waghmare and Ors. ..RESPONDENTS --- Mr.V.D.Salunke, Adv. h/for Mr. T.M.Venjane Adv. for the appellant. Mr.R.B.Deshmukh, Adv. For Resp.Nos. 1, 7 and 8. --- CORAM : K.U.CHANDIWAL, J. DATE : 17th June, 2009 *** PER COURT : 1) Heard Counsel of both the sides. 2) The appellant feels aggrieved by the Award in WCA No.64/2009 by the learned Commissioner for W.C.Act and Judge, Labour Court, Latur, dated 10.09.2008. The matter was earlier heard, as they agreed, the matter is to be finally heard at the stage of admission. Record and Proceeding was called, perused by both the sides. 3) Deceased Bhimrao born on 4.6.1968, oscillating between 34 years of his age at the material time of accident, was plying a 2 motorcycle owned by present appellant, Vikas son of the appellant was pillion rider. There was head-on collision with another motor bike Bajaj M 80, both the riders collapsed and unfortunately Bhimrao had fatal head injury and succumbed leaving behind his widow, five children and parents. The widow (claimant) asserts that Bhimrao was an employee with appellant on monthly salary of Rs.3,000/- as a Muneem/Clerk for about 15 years, and at the material time, deceased was moving with Vikas during the course of employment for purchase of grocery items for the shop of owner/appellant. 4) The learned Judge, considering the evidence adduced, directed compensation of Rs. 2,99,100/- to be paid by the owner/employer to the claimant with interest @ 12% p.a. 5) The Counsel for the employer urged, there was no employer-employee relations between the parties. The deceased was employee of Chatrapati Shivaji Vidyalaya. He was drawing regular salary. Consequently, no liability against the so-called employer/original respondent can be fastened. During the course of submissions, the Counsel submits that statutory notice under Section 10 was not issued, which is a flaw in the matter. The evidence of claimant of employer employee relations since 15 years, is not established. The F.I.R should not have been considered to determine relations. 3 Ultimately, the Counsel urged, the matter needs fresh inquiry and to be remitted to the learned Judge for decision afresh. 6) Counsel for the claimants disputed the allegations. He submits that no substantial question of law could be formulated in the appeal when it is to be taken for admission or final hearing. The Counsel submits that non- participation by the employer for more than two years cannot be put to the shoulders of the claimants as it was the risk carried by the employer. 7) With the assistance of learned Counsel, original record is perused. The claimant was thoroughly cross-examined on 28.4.2005. During the course of cross-examination, on behalf of employer, xerox copies of old record, showing that the deceased was working in Chatrapati Shivaji Vidyalaya, was sought to be confronted. Since they were xerox copies, the learned Judge allowed the employer to call original record from the proper custody and then to put questions in the cross-examination to the claimant, the matter was adjourned. The record projects that sufficient opportunities, at least for more than two years, were allowed and entertained by the employer, but he failed to produce any such record, nor adduced his evidence. Ultimately, it was on 7.7.2008, the learned Judge recorded that there is no further cross-examination to the 4 claimant. 8) I have perused the record in the xerox form, which shows that deceased Bhimrao was a Peon with Shivaji Vidyalaya. He drew salary of Rs.1,317/- against rendering his services. Though the record is in xerox form, I desired to give concession to the appellant (employer), however, the record shatters the contention as it is not accelerating ahead after 1994. The fact remains,by the record which is produced by the employer/appellant, there is no acceleration or proof that after 1994-1995 the deceased was clerk or employee of Chatrapati Shivaji Vidyalaya, Latur. The contention of the counsel that deceased could not be employee for 15 years with the respondent/appellant, may be correct, however, even if one goes with the calculation, and consider the status of the claimant to be a destitute with five children to be maintained, there cannot be a mathematical calculation from 1992-1994 to the death of deceased on 28.2.2002 and this reference, in the evidence, of 15 years’ service looses its significance 9) The objection that there was no notice issued in compliance to Section 10 is distorted as such notice was served to the employer (appellant), as he has clarified in the pleadings, acceptance of service thereof and also that he did not reply such notice. 10) The contention that the report of Vikas, 5 son of the employer, which was recorded by the police, should not have been considered, is basically incorrect. It was the son of the employer (appellant), who put the things in motion. He was the pillion rider and fortunately was a person available to make statement as Bhimrao and the other two persons on Bajaj M 80 had suffered grievous injury and were not in physical fitness to narrate the events. The statement recorded, and which has been placed on record, not objected by the employer at any time. There is no justification on the part of the employer that this statement of his son Vikas was not flowing in tune with the facts prevalent. The objection, that the statement of Vikas is erroneously considered, is misplaced. One cannot be oblivious that the proceedings were under the Workmen’s Compensation Act, 1923, which, inter alia, provide that strict proof of the document, as is warranted under Evidence Act, need not be contemplated. It is a beneficial legislation to provide financial assistance to the legal representatives of the victim during the course of their employment. 11) The question that the matter should be remitted, though appears to be cozy, but difficult to act upon. It was the employer/appellant, who was more in slumber and wanted the things to be prosecuted to the detriment of the claimants as the claimants are 6 destitute. There is no situation to remit the matter to the learned Judge. 12) Considering age of the deceased to be 34 years, there was no mistake on the part of the learned Judge in calculating the compensation and loss and reaching to the conclusion of Award. The appeal does not portray any substantial question of law to be formulated. No error apparent could be seen or pointed in the order under challenge. The appeal sans merit, it is rejected. CA No. 1661/2009 for stay does not survive, it is also dismissed. ( K.U.CHANDIWAL) JUDGE LATER ON : 1) Heard Counsel of both the sides. 2) The matter arises for a claim under the Workmen’s Compensation Act. The first appeal is already disposed of. The amount under challenge is deposited by the appellant. Stay to the proceedings is sought. 3) However, considering the difficulties of the claimant, as she has to maintain five children of deceased Bhimrao, apart from that, the old parents are also dependent, the execution of the order under challenge is stayed with a clarification that if the claimant moves the learned Judge for withdrawal of the amount, he 7 will consider the same by obtaining necessary security from the claimant. ( K.U.CHANDIWAL) JUDGE agp/bdv/fa1063.09