HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 1038 of 2008 Date: 29-07-2011 Between: The New India Assurance Company Ltd ..….. Appellant and Mr. Panga Ramakrishna and another ………. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.No. 1038 of 2008 JUDGMENT: This appeal is filed against the order, dated 09-05-2006 passed in W.C.No.165 of 2004 (NF) on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nalgonda. The appellant herein is opposite party No.2 in the said W.C. The parties hereinafter will be referred to as they are arrayed before the learned Commissioner. 2. The brief facts of the case are that the applicant was employed by opposite party No.1 as a driver on her auto bearing No.AP 24U 8959 and he was being paid the salary of Rs.4,000/- per month. While so, on 12-09-2004 at about 2-30 PM, when the applicant was driving the said auto with passengers from Chandur to Nalgonda and when it reached near St. Alphonsus High School on Devarkonda to Nalgonda road, an auto bearing No.AP 24U 7171 came in a rash and negligent manner with high speed in the opposite direction and dashed the auto driven by the applicant, due to which the applicant sustained fractures to his left leg, left ankle joint, left thigh and grievous injuries all over the body. Immediately, he was admitted in Government Headquarters Hospital and thereafter he took treatment privately by spending huge amounts. Therefore, the applicant filed the W.C. claiming compensation of Rs.1,50,000/- for the injuries sustained by him. 3. In order to prove the claim, the applicant himself was examined as PW-1 besides examining the doctor as PW-2 and got marked Exs.A-1 to A-7 on his behalf. On behalf of the opposite parties, none were examined, however, Ex.B-1, copy of the insurance policy, was got marked. The learned Commissioner, after considering the entire evidence on record, came to the conclusion that the applicant suffered the permanent partial disability in the accident arising out of and during the course of employment under opposite party No.1, and assessed the loss of earning capacity at 40% and basing on the same, awarded the compensation of Rs.1,56,383/-. Aggrieved thereby, the present appeal is filed by opposite party No.2/insurance company. 4. A perusal of the documents in Exs.A-1 to A-7 shows that the offending auto had valid insurance coverage as on the date of accident. On a combined reading of the documentary evidence of Exs.A-1 to A-3 with the ocular evidence of PW-1, it is amply proved that the accident occurred due to rash and negligent driving of the driver of the auto bearing No.AP 24U 7171 against whom the charge sheet was filed. However, the factum of the accident is not disputed in the present appeal. In a case of this nature, when a workman made the claim of compensation under the Workmen’s Compensation Act, it is the primary duty to prove that he is the workman as defined under the Act and he sustained the injuries in the accident arising out of and during the course of employment. Admittedly opposite party No.1 is the owner and the applicant is the driver of the offending auto. As seen from the impugned order, opposite party No.1 was set ex parte. Only opposite party No.2 filed the counter. 5. It is urged by the learned counsel for the appellant- insurance company that opposite party No.1 is none other than the wife of the applicant and that there is no documentary evidence to show that the applicant is the workman under opposite party No.1. 6. Now let us see to what extent the applicant is able to prove that he is the workman under opposite party No.1. As stated above, opposite party No.1 failed to file counter and hence she was set ex parte. As seen from the cause title of the impugned order, the addresses of the applicant and the opposite party No.1 are one and the same. During the course of cross-examination, PW-1 clearly admitted that he did not file the income and employment certificates. There is no iota of evidence adduced on behalf of the applicant to show that he is the workman under opposite party No.1. Opposite party No.1 neither appeared before the learned Commissioner nor filed any counter. The silence on the part of opposite party No.1 gives rise to the inference that she is the consent party for the applicant in filing the claim petition. As seen from the impugned order, the learned Commissioner, for the reasons best known to him, did not record the admission of PW-1 that he has not furnished any document in proof of his employment. Had the learned Commissioner recorded the said admission of PW-1 on that score, the finding of the Tribunal will be adverse to the claim of the applicant. 7. Though opposite party No.1 admittedly is the owner of the offending auto, the fact remains that the applicant and the opposite party No.1 are the husband and wife residing under one roof. As per Section 12 of the Workmen’s Compensation Act, the definition of ‘workman’ reads as under: i) A railway servant as defined in clause Section 2 of the Railway’s Act, 1989 (24 of 1989), not permanently employed in any administrative district or sub divisional office of a railway and not employed in any such capacity as is specified in Schedule-II, or I(a)(a) a master, seaman or other member of the crew of a ship, b) A captain or other member of the crew of an aircraft. c) A person recruited as driver, helper, mechanic, cleaner or any other capacity in connection with a motor vehicle, d) A person recruited for work abroad by a company and who is employed outside India in any such capacity as 1. The definition of Workman as per Section 2(ia)(c) of Workmen’s Compensation Act is “a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a Motor Vehicle.” 8. But, in the present case on hand, as per the positive evidence of the applicant as PW-1 and the circumstances of the case on hand, it can be safely inferred that since the applicant is none other than the husband of opposite party No.1, he will not fall under the definition of ‘workman’ and therefore, he is not entitled to claim any compensation from opposite party No.2/insurance company. Therefore, the finding of the Tribunal fastening the liability against opposite party No.2/insurance company is not sustainable and hence, the same is set aside. 9. Subject to the above, the Civil Miscellaneous Appeal is allowed. However, the applicant can claim the compensation awarded by the learned Commissioner from opposite party No.1, if he is otherwise entitled. No order as to costs. _______________ K.S. APPA RAO, J Date: 29-07-2011 YCR