* 1 * F.A. 20.2011 15.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 20 OF 2011 Bakridoo Ahmed Noor Mohd. Shaikh .......Appellant V/S. M/s. Bajaj Allianz General Insurance Company Ltd & anr. .........Respondents * * * * * * Mr. S.R. Gupta, Advocate for the appellant None for the respondents. Coram : Smt. R.P. SondurBaldota, J. 15 March, 2011. P.C. : 1. This is an appeal preferred against the judgment and order dated 12th October, 2010 passed by the Commissioner for Workmen’s Compensation, Mumbai rejecting the application for compensation filed by the appellant. 2. The appellant filed an application for compensation for injuries sustained by him in an accident which according to him had taken place in the course of his employment with respondent no.1. He contended in the application that he was an employee of respondent * 2 * F.A. 20.2011 15.3.2011 no.1 since the last 10 years, working with him as a driver of an autorickshaw bearing No. MH-02/UA-4845. As a driver, his wages were of Rs.200/- per day. On 9th June, 2011 at about 3.00 p.m. when he reached opposite Dhiraj Apartments on Western Express Highway, a pedestrian suddenly came in front of the autorickshaw. In order to save the pedestrian, he had to apply brakes. On sudden application of the brakes, the autorickshaw turtled. The appellant was trapped below the autorickshaw and sustained the following injuries (1) D-12, L-1, Vertebra compression fracture (2) Fracture of medical malledous (L) (3) Fracture of (L) Fibula (4) Dislocation D-11 D-12 and (5) Fracture of (L) 5th Metatarsal. He was then taken to the hospital and was treated in the hospital until 27th July, 2009. The applicant claimed compensation of Rs.4,94,280/- for the injuries sustained by him. Respondent no.1 filed his written statement admitting the claim of the appellant of the employment, his emoluments and the accident. Respondent no.2-Insurance Company, however, disputed the relationship of employer and employee between the appellant and respondent no.1. It contended that respondent no.1 is the owner of the autorickshaw and the appellant is his brother. The appellant and respondent no.1 have been living together and both have been plying * 3 * F.A. 20.2011 15.3.2011 the autorickshaw. There were no wages paid by respondent no.1 to the appellant. Respondent no.2 had engaged services of an Investigator. During the course of his investigation, he had spoken to the appellant and respondent no.1. Both had given letter dated 16th November, 2009 to the investigator confirming the fact of they being the brothers and the appellant not being the employee of respondent no.1. The learned Commissioner, on appreciation of the evidence held that the appellant has failed to establish that he is an employee of respondent no.2 and that he sustained injuries in an accident during the course of his employment. With these findings, the claim of the appellant for compensation was rejected. 3. The learned counsel for the appellant, vehemently submits that the Commissioner was completely in error in accepting the evidence of the investigator engaged by respondent no.2 and overlooking the admission by respondent no.1 that he is the employer of the appellant. He also relies upon Section 23 of the Indian Evidence Act to submit that admission, if any, given in the letter dated 16th November, 2009 cannot be taken into consideration since it was made only for the purpose of arriving at a settlement with respondent no.2. 4. I firstly deal with the argument advanced by the learned counsel * 4 * F.A. 20.2011 15.3.2011 based upon Section 23 of the Indian Evidence Act. Section 23 reads as follows :- S.23 Admissions in civil cases, when relevant.- In civil cases, “ no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.” The compilation filed by the appellant, contains copy of letter dated 16th November, 2009 signed by both the brothers in which they have stated that the autorickshaw is owned by respondent no.1, who plies the same during night time and the appellant plies it during the day time. Both the brothers reside together and the appellant gives Rs. 150/- per day to respondent no.1 out of his earnings during the day shift. He also pays a sum of Rs.100/- per day towards the household expenses of the joint family. The letter requests for reimbursement of the medical expenses incurred by the appellant for treatment of the injuries sustained by him in the accident. This letter by itself does not contain any agreement that the admission therein should not be used in evidence anywhere. The learned counsel, then refers to the letter dated 30th November, 2009 from the investigator to respondent no.2. He submits that the letter dated 16th November, 2009 had been * 5 * F.A. 20.2011 15.3.2011 forwarded by the investigator to respondent no.2 by his covering letter. He refers, in particular, to the last sentence of the letter which says that the report was being issued strictly without prejudice, strictly confidential and strictly for the insurance company claim settlement process. Even if the last sentence from the internal communication between the insurance company and the investigator appointed by it is to be taken into consideration, the investigation report becomes privileged communication not for the appellant but for respondent no.2 and the investigator. The communication being between respondent no.2 and the investigator appointed by it, the contention that the communication is a privileged communication can be taken up only by the parties to the communication. It has next been submitted by the learned counsel, that the letter was given only for the purpose of arriving at a settlement between the parties. He submits that the letter is infact in the form of negotiations for settlement. There is nothing to indicate that the letter was given in the course of negotiations for settlement. In any case, such was not the evidence before the learned Commissioner. Instead, what was sought to be contended before the learned Commissioner was that the investigator had misled the appellant and respondent no.1 in writing the letter. * 6 * F.A. 20.2011 15.3.2011 The learned Commissioner in his impugned order, as regards the letter observes as follows : 17........There is no explanation as to why they did not “ plead that, they were misleaded by the investigator. On the contrary, the applicant was hesitant in answering question about handwriting of his brother on the same letter. He was stunned when he saw the said letter. It is interesting to see that, the applicant did not utter a single word that, he is his brother/opponent were misled by the investigator. Moreover, I did not see any reason as to why the investigator will mislead the applicant and his brother. The insurance company has millions of claim and amount involved in such claims are very minor if the transactions of the insurance company are seen. More over the amount of compensation, if saved would not have gone to the purse of investigator. Therefore, the investigator was not a person to be benefited by the alleged misrepresentation.” In my opinion, no fault can be found with the above observations of the learned Commissioner. 5. The Commissioner has also found reasonable ground to suspect the genuineness of the claim of the appellant, in view of the conduct of the appellant and respondent no.1 during the course of the entire proceedings. He noted that the appellant and the respondent, nowhere disclosed in the pleadings and the affidavits that they are real brothers and have been living in the same premises as members of a joint family. Infact, the appellant has given a different address of respondent no.1 in the title of the application. The cross-examination * 7 * F.A. 20.2011 15.3.2011 of the appellant brings on record the facts that they are brothers and are staying in the same house. In these circumstances, even if the admission given by the appellant and respondent no.1 to the investigator is completely discarded, the only evidence that remains before the Court to establish the relationship of employer and employee is the word of one of these two persons and the salary certificate given by respondent no.1 to the appellant. The above described conduct of the appellant and respondent no.1 is such that they cannot be said to be truthful witnesses and their word by itself cannot be accepted as the evidence of employment. In these circumstances, there is no infirmity whatsoever in the impugned judgment and order and no question arises for consideration of this Court. Hence, the First Appeal is dismissed. [Smt. R.P. SondurBaldota, J]