* 1 * F.A. 152.2011 10.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 152 OF 2011 IN APPLICATION (WCA) NO. 783/B-174 OF 2004 Mrs. Manikamma Bhimappa .......Appellant V/S. 1. M/s. Om Swastik Paints & Contracts Pvt. Ltd & anr. .........Respondents * * * * * * Mr. Mahendra Agavekar i/by. Mr. Rajesh Gehani, Advocate for the appellant. Mr. P.M. Mokashi, Advocate for respondent no.1. Mr. V.P. Vaidya, advocate for respondent no.2. Coram : Smt. R.P. SondurBaldota, J. 10 March, 2011. P.C. : 1. This Appeal challenges the judgment and award dated 10th October, 2008 of the Commissioner for Workmen’s Compensation and Judge, 12th Labour Court, Mumbai dismissing the application by the appellant for compensation on account of death of her son. The application has been dismissed on the ground that the appellant has * 2 * F.A. 152.2011 10.3.2011 failed to prove that the deceased was an employee of respondent no.1 and that at the time of the accident he was travelling on duty. 2. Respondent no.1 is a painting contractor. It had undertaken the job of painting from respondent no.2. According to the appellant, the deceased was employed as a helper by respondent no.1. The appellant’s case is that the superiors of the deceased had asked him and some other workers to go to Mumbai to bring some material. Therefore, the deceased and other workers had left for Mumbai by hiring a vehicle, a Tata Sumo. On the road, the vehicle met with an accident in which the son of the appellant died and other workers were injured. Respondent no.1 disputed the claim of the appellant that the deceased was its employee and that he was asked to go to Mumbai for any reason. 3. Apart from the oral evidence of the appellant and other witnesses examined by her, the documents relied upon by the appellant to establish the relationship of employer and employee between the deceased and respondent no.1 were (1) specimen copy of application for temporary pass and copy of application for contractor’s employee’s entry form, (2) copy of application dated 25-01-2004 for temporary pass by opponent no.1 to opponent no.2 (3) copy of * 3 * F.A. 152.2011 10.3.2011 application dated 21-01-2004 for temporary pass (4) copy of letter dated 23-01-2004 to the security officer of opponent no.2 by opponent no.1, and (5) copy of letter dated 24-01-2004 to the security officer of opponent no.2 by opponent no.1. All the documents were zerox copies. 4. The appellant in her evidence did not explain the possession of zerox copies of the documents by her. Considering the nature of the documents, in the ordinary course of matter, she is not expected to possess the copies of the documents. At the highest, she could have produced temporary pass provided to the deceased which could have established the relationship of employer and employee. But no such document is produced. Admittedly, there was no notice served on behalf of the appellant upon the respondent calling upon them to produce documents in their possession before the Court. The deposition of the appellant also lacks the statements indicating the circumstances that could enable the appellant to produce the secondary evidence before the Court. Next, even the documents of zerox copies have not been proved by examining the concerned witness. The Court has further found that the documents relied upon by the appellant are dated 25th January, 2004. That date fell on a Sunday on which date the office, as well as, the factory of respondent no.2 was * 4 * F.A. 152.2011 10.3.2011 closed. 5. Mr. Agavekar, the learned counsel for the appellant, relies upon the proviso to Section 66 of the Evidence Act to submit that the Court ought to have appreciated that there was no need for the appellant to give notice to respondent no.1 to produce the originals of the above documents, as from the nature of the case, respondent no.1 ought to have known that it would be required to produce the documents. The submission is difficult to accept since the respondents are not expected to know that for establishment of relationship of employer and employee between the deceased and respondent no.1, the correspondence inter-se the respondents would be required to be produced. Since the above mentioned documents are not the documents of employment of the deceased with opponent no.1 and since the documents may at the highest be of corroborative value, no resort could be had by the appellant to Section 66 of the Evidence Act. 6. The Tribunal has rightly observed that the appellant had failed to establish the circumstances enabling her to produce the secondary evidence of the above-mentioned documents. Further, even if the secondary evidence of the documents was to be accepted, it was necessary for her to prove the documents by examining the necessary * 5 * F.A. 152.2011 10.3.2011 witness, particularly, in view of the fact that one of the documents was dated 25th January, 2004 which date fell on a Sunday, which is an holiday for respondent no.2. Therefore, the inference of the Commissioner that the appellant has failed to establish the relationship of employer and employee between the deceased and respondent no.1 cannot be faulted with. 7. The Commissioner, next found that it was for the appellant to examine the supervisor of respondent no.1 who according to the appellant had instructed the deceased and other workers to proceed to Bombay for purchase of some material for the painting job. It is also not known as to who had hired the vehicle for proceeding to Mumbai. In view of the above, the Commissioner has rightly dismissed the application filed by the appellant, though the fact of the accident and death of son of the appellant in the accident had not been disputed. Hence, the appeal is summarily rejected. [Smt. R.P. SondurBaldota, J]