1 fa764 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.764 OF 2010 Arvind Shamlal Yadav ...Appellant vs. 1 M/s.Neeta Tours & Travels 2 The New India Assurance Co. Ltd. ...Respondents Mr.T.J.Mendon for the appellant Mr.Devendranath S. Joshi for the respondent no.2 CORAM :A.S.OKA,J. DATE :DECEMBER 23,2010 P.C.: 1 Heard the learned counsel for the appellant and the learned counsel for the second respondent. The first respondent is duly served with the notice. Notice for final disposal is issued by this Court. 2 By the impugned Judgment and order, the claim petition filed by the appellant under section 4 of the Workmen s Compensation Act,1923 (hereinafter referred to as the said Act) has been dismissed by the learned Commissioner. The case of the appellant was that he was an employee of the first respondent and was working as a driver of the bus. The bus met with an accident as a result of which the appellant sustained injuries and therefore, the claim for compensation was made. 3 The claim petition was opposed by the second respondent-insurer by contending that there was no employer-employee relationship between the appellant and 2 fa764 the first respondent. It was contended that the appellant was not having any driving licence at the time of the accident. 4 The finding of the learned Commissioner for Workmen s Compensation is that the appellant did not prove the existence of employee-employer relationship between himself and the first respondent. The learned Commissioner observed that though a case was sought to be made out that the appellant was a second driver or co- driver who was not driving the bus at the relevant time, there was no such pleading. The learned Commissioner further observed that the police papers do no show that the appellant was the driver employed by the first respondent. 5 The learned counsel for the appellant submitted that even in the notice of demand it was the case of the appellant that he was a co-driver of the bus. He submitted that there was no challenge to the version of the appellant in the examination-in-chief that he was employed as a driver. He submitted that an opportunity may be granted to the appellant to lead further evidence for proving that there was an employee-employer relationship between the appellant and the first respondent and to prove that the appellant was possessing a valid driving licence on the date of the accident. 6 The learned counsel for the second respondent submitted that neither in the claim petition nor in the evidence, the appellant came out with a case that he was a co-driver. He submitted that the said case is an afterthought which is completely contrary to the case made out by the police papers. He submitted that the case made out by the appellant was not proved and no 3 fa764 interference is called for. 7 I have considered the submissions. I have perused the record. In the notice dated 14th January 2009 which preceded the filing of the claim petition, a specific case was made out by the Advocate for the appellant that the appellant was traveling as a co-driver in the bus in question. A xerox copy of the postal acknowledgment of the said notice signed by the second respondent is placed on record. However, the original is not placed on record. Perusal of the examination-in-chief of the appellant shows that he stated that he was employed as a driver on the bus in question. In the cross examination made by the second respondent, there is no specific challenge to the statement that the appellant was a driver. However, there is a cross examination made on the issue whether the appellant was possessing a driving licence. It is true that in the examination-in-chief, there is no specif assertion that the appellant was the employee of the first respondent. It is stated that the appellant was employed as a driver on the ill fated bus owned by the first respondent. Perhaps, there was no contest by the first respondent and therefore, the specific statement is missing from the examination-in-chief. 8 Nevertheless, the status of the appellant as a driver of the bus was not challenged in the cross examination by the second respondent. What is produced by the appellant is a photo copy of the alleged licence without adducing any evidence to show that it is a true copy of the original. Moreover, the original acknowledgment of the notice was not produced on record. 9 Considering the aforesaid factual situation, an opportunity deserves to be granted to the appellant to 4 fa764 lead further evidence in support of his claim. It is obvious that even the respondents will be entitled to adduce further evidence. 10 Hence I pass the following order : i) The impugned Judgment and Order dated 23 rd February 2010 is quashed and set aside and the claim petition of the appellant is restored to the file of the learned Commissioner for Workmen s Compensation. ii)The learned Commissioner will issue notice to the parties and will allow the appellant to adduce further oral and documentary evidence. It is obvious that the respondents will be also permitted to lead additional evidence. iii)After considering the evidence which is already on record and the evidence which may be adduced by the parties after remand, the claim petition shall be decided afresh. iv)The learned Commissioner will endeavour to decide the claim petition as expeditiously as possible and preferably before the end of July 2011. v) Appeal is partly allowed in above terms with no order as to costs. JUDGE