FA/544/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 544 of 2008 With CIVIL APPLICATION No. 1534 of 2008 In FIRST APPEAL No. 544 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NEW INDIA ASSURANCE COMPANY LTD - Appellant(s) Versus SOMABHAI KALABHAI GOHIL & 2 - Defendant(s) ========================================================= Appearance : MR HASMUKH THAKKER for Appellant(s) : 1, MR PH PATHAK for Defendant(s) : 1, RULE SERVED for Defendant(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/07/2008 ORAL JUDGMENT 1. Heard learned counsel for the parties. The New FA/544/2008 2/5 JUDGMENT India Assurance Company-appellant herein-original defendant no.3 has preferred this First Appeal being aggrieved and dissatisfied by the judgement and order dated 03.10.2007 passed by the learned Workmen's Compensation Commissioner, WC Act, Labour Court, Kalol (hereinafter referred to as “the Commissioner”) in Workmen Compensation Case No. 06/2004 on the ground that the commissioner committed jurisdictional error in making the award when the insured is R.K Fabricators and not respondent no. 2 and when R.K Fabricators was not impleaded in the Workmen Compensation Case No. 06/2004 and that the commissioner committed jurisdictional error in entertaining the case when the employer employee relationship between the respondent no.2 and respondent no. 1 or respondent no. 3 and respondent no.1 was not proved and further committed an error in considering the monthly income of the respondent no.1 at Rs. 3000/- in absence of any documentary evidence. 2. The facts in brief deserve to be set out as under: 2.1 The workman was discharging his duties under the direct supervision of opponent no.1 and 2 and was drawing salary of Rs. 3000/- per month. The opponent no.1 was the organisation-principal employer who had engaged the respondent no.2-the contractor for carrying out certain work and the workman was in the employment of respondent no.2. During the course of the work on 17.02.2004, an accident occurred and FA/544/2008 3/5 JUDGMENT the 2nd, 3rd and 4th fingers of the workman got crushed. The workman had to be admitted in an orthopedic hospital and looking to his age i.e. 37 years, compensation of Rs. 97,940/- was awarded by the commissioner in Workmen Compensation Case No. 6/2004 vide order dated 03.10.2007. Being aggrieved by the said order, the present appeal is preferred. 3. The main contention of Mr. Hasmukh Thakkar, learned advocate appearing for the appellant is that even a cursory glance at the cause title would indicate that R.K Fabricators is not a party and therefore the commissioner ought to have appreciated this fact and no compensation should have been awarded as the appellant had insured one R.K Fabricators whereas the name on the cause title is shown as Rajesh Punjabi - Labour Contractor. He has further submitted that in view of the said fact the insurance company could not have been made responsible as the said Rajesh Punjabi was not insured. 3.1 Mr. Thakkar at the same time fairly admitted that the insurance company was joined at the request of respondent no.2 and during the entire proceedings the insurance company has not taken up this contention at all and therefore for the first time this contention is being taken up before this court. 3.2 Without prejudice to the aforesaid contention, Mr. Thakkar has further submitted that the allegation FA/544/2008 4/5 JUDGMENT with regard to respondent no.2 being approved contractor of respondent no.1 is also not proved and the quantum of monthly salary has also not been proved by any documentary evidence and therefore to that extent the award deserves to be quashed and set aside. 4. Mr. Pathak, learned advocate appearing for the respondent has submitted that the contractor i.e. the respondent no.2 has not denied anywhere that the workman was not getting Rs. 3000/- per month by way of salary and in absence of such denial or any admission on the part of the contractor is sufficient to accept the quantum of salary. He has submitted that the appeal deserves to be dismissed. 5. This court has considered the rival contentions of the parties. As regards the contention about the insured being R.K Fabricators, Mr. Pathak has vehemently submitted that this contention had never been taken up before the commissioner to which Mr. Thakkar has candidly admitted that it was never taken up and therefore this may not be a contention warranting much dwelling upon by this court at this stage. 6. This brings this court to the second contention being lack of documentary proof with regard to the respondent no.1 being engaged by respondent no.2 for carrying on labour work. The entire order of the commissioner indicates that the work was being FA/544/2008 5/5 JUDGMENT carried out at the behest and at the instance of respondent no. 1 and that the workman was in the employment of respondent no.2. The workman received serious injuries resulting into disability to a certain extent and therefore he was awarded the amount of compensation. The factum with regard to the act of accident has been proved. The injuries sustained by the workman has also been proved and the workman was in the employment of the respondent was also proved before the Workmen Compensation court. Therefore, this court is of the view that no case is made out for interference in the above order. This appeal fails and therefore is dismissed accordingly. 7. In view of the order passed in First Appeal, no order in Civil Application. Civil Application stands disposed of accordingly. Rule is discharged. (S.R.BRAHMBHATT, J.) Divya//