'^^ HLGH^OURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L Jhanwar, M.A.(C)No.1494of2009 APPELLANT NON-APPLICANT RESPONDENTS Bafna Construction Company Limited. Versus Smt, Damyanti Mishra and another. ORDER For PronouncementofOrder p .02.2011 Sd/- R.L. Jhanwar Judge ^ /"•/f -f %.'^t^ Ys HLGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.LJHANWAR. J. Misc. Appeal (Cl No. 1494 of 2009 APPELLANT NON-APPLICANT Bafna Construction Company Limited through Ayaj Bafna, son of Phoolchand Bafna, Malviya Nagar, Durg (C.G.) VERSUS RESPONDENTS 1) Smt. Damyanti Mishra, wife of Tribhuvan Prasad Mishra, aged 48 years, Occupation House wife. 2) Tribhuvan Prasad Mishra, son of late Jagannath Mishra, Both residents of Viltage Chhursi, Police • Station Chhura, Gai-iabdndh, ! Raipur tytT<>c.. Af^peai f'.' -:'.' •^-?-'-- -- .'•;t--.- APPEAL UNDER SECTION 30 OF THE WORKMEN'S CQMPENSATIQN^CT 1 Appearance: Shri H.B.Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for Shri Shivendu Pandya, counsel for the respondents. ORDER (Passedon p.02.2011) ; r ! . i'.'. Aggrieved by the order dated 6.8.2009 passed by the Commissioner for Workmen'SiCompensation.LabourCourt, Raipur (henceforth 'learned Commissioner') in case No. CZ/IB/169/2007/WC/Fatal whereby the learned Commissioner has awarded; a sum of Rs.2,69,100/- as compensation in favour of the claimants, the appellant/Company has preferred this appeal.. Sh^-Sh;Y(^nd" Pnndv:? co-'n^e'fc. fh-.: :.:.-; •.••.•-': '-. 2. Brieffacts ofthe case, in a nutshell, are thatthe deceased Kamal Narayan was working as Supervisor under the appeljant/Company. Kamal Narayan, being an employee under the appellant/Company, was earning Rs.2500/- per month and he was posted at village Rasela office. AppellanVCompany took one Jeep bearing No. C.G. 04 ZD 7598 (1'or short tHei^eeplywi hire fromr6ne' Rajkumari MisHra and engaged the same ih %&: ^ ;''-..:—.„,,..-.•::,' its contractor's place and the said Jeep was engaged in bringjng and leaving the labourers. The deceased, being an employee of the appellant/Company, was entrusted to look after the transporting the labourers from time to time. Cn fateful day of 23.3.2007, according to order ofthe appellant, thedeceased was coming with labourers in the said Jeep and the said Jeep was suddenly uncontrolled and turned turi:le at village Medkidabri, as a result ofwhich, the deceased died on the spot. 3. On account of death of Kamal Narayan, claim petition seeking compensation of Rs.2,76,712/- along with interest was filed before the learned Commissioner. The appellant/Company by filing its written statement denied the averments made in the claim petition. ' I. . ..-; .;. 4. All the parties led evidence beforethe learned Comrjnissioner and the.jeamed Commissionen.on clpsescrutiny ofthe evidence avai|a,ble on record and submissions made by respective parties, held that the appellant took the said Jeep on hire and that death of Kamal,Narayan took place arising out of and in the course of employment under the appellant/Company awarded a sum of Rs.2,69,100/- to theclaimants for the death of Kamal Narayan during course of his employment under the appelIant/Company. It is this order, which is under challenge by the appellant/Company. 5. Shri H.B.Agrawal, learned Senior Advocate with Shri Pankaj Agrawal, counsel for the appellant argued that the deceased was'not the drivera6fvthe--appellant/eompariy- but-was working 'as Supervisdr;' <The offending Jeep was belonging toone Rajkumari Mishra and sihce the appellant took that Jeep on contract basis and due to that contract, the owner ofthe Jeep had provided to the appellant with one driver, fherefore, the appellarit/Company was neither the owner of the Jeep ihbr is, responsible to pay any compensation. He also argued that (at the timeof accident'the deceased was not workmg for appelIant/Company and was also not present in duty hours commencing from 10.00 a.m. to 5.00 p.m. It was further argued that being an employee, thedeceased was being helped financially from his employer. Learned counsel further argued fhat learned'Commissioner was not justified in fasteningliability upon the U:i. ^: IV appellant to pay compensation while holding that the death of deceased •I Kamal Narayan took place arising out of and in the course of employment f ^J} ^' . '^M. under the Company. On these premises, he urged that the impugned order be set aside and the appeal be allowed. 6. On the other hand, learned counsel for the claimants / respondents vehemently argued that the appellant has admitted that the deceased was his employee. The appellanVCompany did not produce any document relating to driver. According to him, the deceased was working as driver and the appellant was paying him a sum of Rs.2500/- per month and on the date of accident the deceased was engaged for the purpose of bringing and leaving the labourers. Lastly, he submitted that after appreciating the evidence available on record, the learned Commissioner has rightly fastened the liability to pay compensation on the appellant. 7. I have heard learned counsel for the parties at length and perused the recotid including impugrtedorder^ ; • :; ; i ! •' 8. In the present case, the question that arises for considerationis as to whether the finding of the learned Commissioner that death of Kamal Narayan took place arising out and in the course of employment and whether the learned Commissioner was justified in fastening the liability on the appellant/Company?' On perusal of the record, it is clear that the appellant has admitted that the deceased was working I'lnder'him as Supervisor. According to appellanVCompany, the deceased was not working as Driver and also on the date of accident, the appellant did not send the deceased to drive thessid Jeep and according to if, the driver.of (jie ;^.sajd :Je^p;,,was; ,anothqr person. In its evidence, the appellan^Company did not produce any document to show that on the date of accident, the said Jeep was being driven by another driver andif another driver would havedriven the said Jeep, then certainty he would have come and rebutted the evidence that he was the driver at the tjme of accident. No witness ofthe Company has stated as to who was the driver of the offending vehicle. Sri Kishan Lal, who isworking as Munshi under the appellant/lnsurance Company, in his evidence has also not stated the nameof the driver. According to him, he was the eye witness for accident but could not identifythe deceased. He has deposed that he did not know the number of theoffending Jeep nor did lodge any report regarding the accident. It seems that his evidence does not insDire confidence and :^:T.^". ~--^-- "-7'-;" ,-------- ---- --- ------ -^--——--- trustworthy. According to evidence of Varun Kumar Sarkar N.A.W.1, it is rYH'r ^' w %^^—^^ clear that he was the driver of the appellant/Company and on the date of accident, as per instructions of his owner i.e. Ajay Bafna, he went to village Chhura since the driver of D.E. 207 was absence. He has further deposed that he came to know that thesaid offending Jeep was being driven by the Supervisor who was going to Chhura to Rasela carrying diesel and oil. Thus, it has come in his evidence that driver of offending jeep was carrying diesel and oil along with employees and as the said offending Jeep got turned turtle, due to that, Kamal Narayan died. His evidence has also been supported by the evidence of A.W.1 Tribhuvan Prasad Mishra, who has stated that deceased was his son and on the date of incident, the deceased was driving the Commander Jeep while going to village Rasela. He has further deposed that on the instructions of the appellanVCompany, the deceased was taking the co-employees in the said'Jeep after filling diesel in the tanker of the said Jeep. It has further come in the evidence that permission was also given by the appellant/Company to the deceased to bring and take the employees to the place of work. It has also come in his evidence that the deceased was working as Supervisor as well as driver and was also looking after other job, as per instructions ofthe appellant/Company. This piece ofevidence :^^, ,•:,.,, ^.r^.i" ; .^ ;..'. ^ . . . -. .. -^ - , • .. - ^ - — • \. : • was not rebutted by the appellant, therefore, it is clear that the deceased ! wasworking as driver on the date of incident while taking the employees to the place and was also earning Rs.2500/- per month. Thus, the learned i • : Commissioner has rightly held that deceased was the employee of the appellant and was driving the Jeep on the date of accident, as per sa^.f :Jeef:' c'n'" •n!;r"' •.:••.*—:-?••; •;"•• -•.!••;••-• •;• •••• '••-••^ "• -•' '• ~--;--^ ";!T"I':'.': instructions of the appeItant/Company. ! 9. So far as the argument of the learned counsel for the appellant that the appellant is not the owner of ths offending Jeep andthe;real owner of the offending Jeep was some Rajkumari Mishra and that ]the offending Jeep was taken on hire basis is concerned, thereis nothihg on recprd to showthatsaid Jeep was taken on hire as also nothing has been stated in this connection. However, according tostatement and admission, thej'eep was in possession of the appellant/Company and was being driven by the deceased on its instructions, therefore, 1 am ofthe considerepl opinion that the appellant was rightly held liable for payment of compens^tion. 10. 36 far as how much compensation should be awarded is concerned, since nothing has been argued by the learned counsej for the •v-'^^ .:^:&^^.3 :r:%.. 1 .f:^v' 3 S (^9. appellant on this point, therefore, the compensation of Rs.2,69,100/- awarded by the learned Commissioner is just and fair compensation. The findings recorded by theTribunal are purely based on legal, clinching and reliable evidence sustainable under law. .11. On close scrutiny, l do not find any illegality or infirmity in the impugned order requiring interference by thisCourt. 12. Consequently, the appeal being devoid of merit and substance is liable to be and is hereby dismissed. —~ Sd/- R.L. Jhanwar Judge I) < ^..•f ?^'r'.:-.;'^f •t'\'