1 F.A. 1048/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1048/2009 1 Haribhau s/o Sakharam Gite, Age : 62 years, Occu. Nil, R/o Hiwarkheda, Tq. Aundha, Dist. Hingoli, At present at Wangi Road, Parbhani District Parbhani. 2 Vatchalabai w/o Haribhau Gite, Age : 57 years, Occu. Household, R/o As above. ...Appellants. Versus 1 Smt. Chhaya w/o Gendlal Gavate, Age : Major, Occu. Business, R/o Yerkheda, Tq. Kamathi Dist. Nagpur. 2 National Insurance Company, Branch Nagpur (For service of summons, Nagina Ghat, Nanded). 3 Sunita w/o Ramesh Gite, Age : 25 years, Occu. Household, R/o Salna Tq. Aundha Dist. Hingoli. ...Respondents. Mr. Swapnil S. Rathi, Advocate for the appellants. Mr. D.V. Soman, Advocate for respondent No.2. CORAM : SMT. MRIDULA BHATKAR, J. DATED : 22nd August, 2011. ORAL ORDER : 1. This appeal is filed for the compensation under the Workmen Compensation Act, by the appellants / Original petitioners – the parents of the deceased, who was working as a driver over the truck No. MH-40/3661. Respondent No.1 is owner of the said truck and the 2 F.A. 1048/2009 truck was validly insured with respondent No.2 Insurance Company at the relevant date. On 18/05/2005, on the road Ahmednagar to Pune, the truck collided with a tempo coming from opposite direction and the driver who was son of the appellant, died in the said accident. The appellant filed claim against the owner of the truck and the Insurance Company. Respondent No.3 is wife of the deceased. The claim petition was dismissed by the Civil Judge (Senior Division), Parbhani and Ex-Officio Commissioner for Workmens’ Compensation, Parbhani by judgment and order dated 20/02/2009. 2. I have perused the judgment and order. Issue No.2 in respect of valid insurance policy is decided in affirmative. However, issue in respect of relationship as employee and employer was held as not proved. Even age of the deceased is held as not proved. The reason given for issue No.1 is found incorrect. Though respondent No.1 owner has admitted that deceased Ramesh was working as driver with him at the relevant time and drove said vehicle in the course of his employment, as he was carrying iron angles in the truck to Chinchwad, surprisingly the learned Commissioner did not accept the relationship of the deceased and respondent No.1 as employee and employer. The learned Commissioner went to the extent of holding that the identification of deceased was also not proved as mentioned in para 9 of the judgment. The finding given by the learned Commissioner appears perverse and it needs to be appreciated in proper perspective. Hence, the matter is remanded to the Commissioner, Parbhani. 3. Respondent No.3 in her written statement has taken stand that she did not want to claim anything as she was residing separately 3 F.A. 1048/2009 from the deceased but the deceased and respondent No.3 have minor son out of the wedlock and she claims share of minor son in the amount of the compensation. That fact is to be also considered by the Commissioner. 4. The commissioner shall decide the matter on or before 30th September, 2011. 5. The Commissioner is directed to issue notice immediately to respondent No.3. [SMT. MRIDULA BHATKAR, J.] ts k/2011/August22/fa1048.09