1 F.A. 65/1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 65/1993 Mrs. Lata w/o Balu @ Annasaheb Jadhav, Aged : 30 years, on her behalf and on behalf of the minor children: (a) Ku.Anjali Balu, Aged 11 years, and (b) Ku. Manoj Balu, Aged Minor, all residents of Rahuri, Tal. Rahuri Dist. Ahmednagar. ...Appellant (Orig. Applicant) Versus 1 Trimbak Krishnaji Kulkarni, Aged : Majjor, Forest Officer, Palner, Niyojan Vibhag, Navrang Colony, Rovpur, Dhulia. 2 Gulab Sheru Borude, At Post : Guha, Tal. Rahuri, Dist. Ahmednagar. (Since deceased through L. Rs. (a) Smt. Dhasabai w/o Sheruji Borude, Age : years, Occu. Nil R/o Guha, Tq. Rahuri, District A’Nagar. (b) Sachin s/o Gulabrao Borude, Age : 28 years, Occu. Agri, R/o Guha, Tq. Rahuri, District A’Nagar. (c) Rajendra s/o Gulabrao Borude, Age : 26 years, Occu. Agri R/o Guha, Tq. Rahuri, District A’Nagar. (d) Kirti d/o Gulabrao Borude, Age : 20 years, Occu. Agri, R/o Guha, Tq. Rahuri, District A’Nagar. (e) Shobha d/o Gulabrao Borude, Age : 18 years, Ocu. Agri. R/o Guha, Tq. Rahuri, District : A’Nagar. 3 The National Insurance Co. Ltd., 2 F.A. 65/1993 Ahmednagar, Banch at Sarjepura, Through Branch Manager, through Division Manager, Kokanwaadi, Hajari Chambers, Station Road, Aurangabad. ...Respondents. Mr. V.S. Sawaji h/f Mr. T.K. Prabhakaran, Advocate for the appellants. Mr. R.R. Karpe, Advocate for respondents No.2(b) & 2(c). CORAM : SMT. MRIDULA BHATKAR, J. DATED : 03rd October, 2011. ORAL JUDGMENT: 1. The appellants a widow and two minor children through her, have filed this appeal against the judgment and award dated 30/11/1992 passed by the Commissioner for Workmen’s Compensation & Judge-1st Labour Court, Ahmednagar. The deceased was a driver. It is the case of the appellants that the deceased at the relevant time, was getting daily wages Rs.35/- + Bhatta of Rs.10/-. Thus, he was drawing Rs.45/- per day and at the time of accident, he was 30 years old. The accident has taken place on 06/05/1984 in which husband of appellant No.1 died. Opponent No.1 is a Sub divisional Forest Officer, who was posted at the relevant time at Ahmednagar. Opponent No.2 is owner of jeep No. MTJ-3479. Opponent No.3 is Insurance Company. It is the case of the appellants that on 06/05/1984 the deceased was engaged by opponent No.1 as the jeep was engaged by opponent him to go to Nasik and Trimbakeshwar from Ahmednagar. He along with his family members wanted to visit these places. When the deceased in the morning, reached at the house of opponent No.1, the deceased was asked by 3 F.A. 65/1993 opponent No.1 to prepare jeep for journey. The deceased therefore, went to take water from the water tank, which was in the residential premises of opponent No.1. While he was taking water to fill it in the radiator of the jeep, he received electric shock and he died on the spot. The appellants thereafter filed claim petition under the Workmen’s Compensation Act against opponent No.1, for amount of Rs.87,351/- + 50% penalty of Rs.43,675.50 ps and claimed interest @ 18%. 2. Opponent No.1 in his written statement complained that the said jeep was owned by opponent No.2 and the deceased was working as a driver with opponent No.2. It was complained that opponent No.2 was a contractor with the forest department who used to supply seeds of forest trees to the department and the deceased used to bring those seeds in the impugned jeep. Opponent No.1 in his written statement, had denied that he has hired that jeep and called the deceased to go to Trimbakeshwar and Nasik from Ahmednagar. Thereafter, the appellants who are the original claimants, amended their claim by adding respondents No.2 and 3 to the array of respondents. Respondent No.2 the owner of the jeep did not appear inspite of the service of notice and the matter decided ex-parte, against him. However, Insurance company respondent No.3 filed written statement and denied the Insurance policy. It was further contended that at the time of accident, the vehicle was not in motion and was not in use on the road and therefore, the liability of the Insurance company is not covered. 3. Both the parties tendered evidence. The appellant examined herself and Medical Officer on the point of death. Opponent No.1 4 F.A. 65/1993 entered the witness box to prove his case and was cross examined by the counsel for the appellant, and also by the counsel for opponent No.3 Insurance company. The Commissioner after considering the evidence rejected the claim application. Hence, this appeal. 4. Learned counsel for the appellants submitted that the Commissioner had committed an error in holding that the accident has not taken place during the course of employment. He submitted that as per the evidence of C.W. 1, on 06/05/1984 her husband was called by opponent No.1 to go to Nasik. She deposed that she had knowledge that then her husband was on duty of opponent No.1. He met with accident while filling the water and therefore, opponent No.1 is to be held liable. Learned counsel has submitted that the Commissioner ought to have appreciated the evidence in proper perspective and should have held opponent No.1 liable and as the jeep was insured with Insurance company, the insurance company also should have been held liable. He relied on details furnished by R.T.O., Shrirampur dated 21/09/1991, wherein name of the Insurance company is appearing and the insurance policy is shown as valid from 20/12/1983 to 19/12/1984 and the incident has taken place on 06/05/1984. 5. Learned counsel appearing for opponent No.1 argued that opponent No.1 has led the evidence and he has specifically mentioned that opponent No.2 was the owner of the jeep and the deceased was working with him as driver. So, there was no relationship as employer and employee between the deceased and opponent No.1. Learned counsel for opponent No.2 argued that the pleadings in the claim application and the evidence of the applicant is 5 F.A. 65/1993 to be taken into account wherein the appellant did not say anything about the employment of the deceased with opponent No.2. Learned counsel submitted that even if it is held that there was a contract between the forest department and opponent No.2, the owner of the jeep was providing sheets and the deceased used to take those sheets in the jeep to the opponent No.1, then opponent No.1 being the head of the department is a Principal and under section 12 of the Workmen’s Compensation Act of 1923 is to be held liable. He submitted that the Commissioner has rightly exonerated opponent No.1 from the liability. Learned counsel for respondent No.3 Insurance company opposed the claim of the appellants on the point that the insurance policy of the vehicle was not valid. It is submitted that on the basis of the details which are given by the R.T.O., valid policy can not be determined and at the time of the accident, the vehicle was not in motion, the incident has not taken place and if the insurance policy is not valid, under the Motor Vehicles Act, the Insurance company is not liable. He submitted that the accident has taken place when the vehicle was not in motion and therefore, the policy should have been under the Workmen’s compensation Act and in support of his submission, learned counsel relied on the case of Oriental Fire and Insurance Company Limited Vs. Dr. G.R. Purohit and others reported in 1 (1999) ACC 138 (DB). 6. In the appeal, the points for determination arise - Points Findings. (I) Whether the appellants have established that relationship of 6 F.A. 65/1993 the deceased with opponent No.1 or opponent No.2 was as employee and employer ? No. (II) Whether the accident has taken place during the course of employment ? No. (III) Whether the order passed by Commissioner for Workmen’s Compensation & Judge-1st Labour Court, Ahmednagar against the appellants is illegal ? No. 7. Perused the judgment and evidence of the witnesses before the Court. Perused the claim petition and also written statement of the opponent No.1 and opponent No.3. The manner in which the deceased died on 06/05/1984 is not challenged by either of the parties. At the relevant time, impugned jeep No. MTJ-3479 was standing in the premises of opponent No.2 and the deceased died due to electric shock, while taking out the water from the tank, is also proved. However, to bring the application under the provisions of compensation under the Workmen’s Compensation Act, it is necessary for the appellants to prove that the deceased was a workman under the definition of the Workmen’s Compensation Act and was in the employment of the opponent from whom the compensation is claimed and who are held as liable to pay the compensation. In the body of the claim, the appellant has not specifically mentioned in whose employment the deceased was, so 7 F.A. 65/1993 also in her evidence, she has deposed that on 06/05/1984 he went to the house of opponent No.1 to whom she knew and as he has asked the deceased to take him and his family members to Trimbakeshwar and Nasik from Ahmednagar. Though she has deposed that he was getting Rs.45/- per day and he was 30 years old, she did not say specifically either in the claim or in the evidence that he was in the employment either of opponent No.1 or opponent No.2. The trial went ex-parte against opponent No.2. However, opponent No.1 denied that the deceased was in his employment. In the written statement, opponent No.1 came out with totally a different story and he offered himself as a witness and he was cross examined by the appellant and also opponent No.3 i.e. Insurance company. It is stated by him that the deceased was in the employment of opponent No.2 as a driver and therefore, employee and employer relationship between them never existed. 8. There is contradictory evidence adduced by the appellants and also by opponent No.1 on the point of employer and employee relationship of the deceased and opponent No.1. Learned judge of the Commissioner Labour Court has considered this aspect and has said that the appellants have centered their case only against the opponent No.1. However, the appellants failed to prove the fact of employee and employer relationship between the deceased and opponent No.1. In the course of evidence, opponent No.1 has adduced the documentary evidence of he using the public transport to go to Trimbakeshwar and Nasik on that day and stated that he was elsewhere. The Commissioner has rightly observed that it is an unfortunate litigation where the appellants have failed to establish the 8 F.A. 65/1993 relationship as employee and employer between the deceased and either opponent No.1 or opponent No.2. The Court can not go beyond the averment made in the claim so also the evidence of the claimant while proving the fact of employment. Thus, the finding given by the Commissioner can not be faulted out and the Commissioner has taken possible view available before him. Therefore, on merits the appeal fails. ORDER The appeal is dismissed. [SMT. MRIDULA BHATKAR, J.] ts k/Oct.2011/fa65.93