FA/369/2001 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 369 of 2001 With CIVIL APPLICATION No. 568 of 2001 In FIRST APPEAL No. 369 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== I.B.PATEL & CO. Versus HIRABEN KARSANBHAI CHAVDA AND ANOTHER ====================================== Appearance : MR AK CLERK for Appellant. None for Respondent No.1. MR ASHWIN V BHATT for Respondent Nos.1.2.1, 1.2.2, 1.2.3,1.2.4 MR RM VIN for Respondent No.2. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/08/2008 ORAL JUDGMENT 1. By way of this appeal, heirs of original opponent no.1 have FA/369/2001 2/5 JUDGMENT challenged judgment and order of Workmen Compensation Commissioner dated 18th September 2000, whereby Workmen Compensation Commissioner allowed the application preferred by the original claimant. Since the original claimant has expired during the pendency of the application, legal heirs were brought on record. 2. The facts in brief, as emerging from record, are as under: 3. The claimant has stated that while he was working with the appellant herein, he met with an accident and sustained various injuries. It is also the case of the claimant that he sustained injuries on his spinal cord. It is also stated that due to the injuries he has got permanently disabled in both his legs and he is unable to do any work. Therefore, by filing claim application it is prayed that Rs.1,00,000/- may be granted as compensation with 12% interest per annum. Said application was resisted by the present appellant by filing written statement, wherein it is averred that there is no relationship of master and servant between the parties and that original applicant was never in the employment of the appellant herein. It is also averred in said written statement that original applicant was not an agent of appellant herein and facts regarding working of the original applicant with appellant herein were fabricated and concocted. It is also stated that original applicant had came to seek work from the appellant, however, he was not given work and while returning from there, the original applicant claimant met with a road accident and the appellant herein has only tried to help him. In view of above averments, it was prayed that claim of the claimant may be dismissed. 4. After considering the evidence on record, Workmen Compensation Commissioner partly allowed the application by the impugned judgment. FA/369/2001 3/5 JUDGMENT Being aggrieved by it, the appellant has filed this appeal. 5. I have heard learned advocates, Mr.A.K.Clerk, Mr.Ashwin Bhatt and Mr.R.M.Vin for the parties. 6. Learned advocate, Mr.Clerk, appearing for the appellant has made following submissions. He submitted that the original claimant was not an employee of the appellant herein. He further submitted that the claimant was in search of work, however, no work was given to him. He also submitted that since the accident has occurred and the appellant herein has tried to help the claimant, case is filed by the claimant that he was working with the appellant herein. He also submitted that notice served by the claimant on the appellant herein on 4th January 1989 was replied on 2nd February 1989. In reply dated 2nd February 1989, it was categorically contended that company has tried to help the deceased at the time of accident, therefore, it is specifically contended that no accident has happened with the original applicant at the site of respondent company. It is submitted on behalf of the appellant that the Workmen Compensation Commissioner has relied upon a document, which was not authenticated by the company. It is also submitted that the company was issuing printed cards to its employees, whereas in this case, it was only a hand-written document and that too for the few days when the deceased claimed to have worked with the company. 7. Learned advocate, Mr.Bhatt for respondent no.1.1 to 1.4 – heirs original claimant submitted that opponent herein has taken inconsistent stand to its own written statement and witnesses of the appellant and claimants have established that the original applicant was in employment. He stated that one Shyamjibhai has also supported the say of the claimant. In that view of the matter, no interference is called for FA/369/2001 4/5 JUDGMENT in the impugned order. 8. In my view, while considering the document with regard to employment of the employee, Workmen Compensation Authority has lost sight of most important fact that the company used to issue printed cards and in the present case the card produced was neither printed nor signed by any authorized persons of the company. 8.1 It is also required to be noted that there are inconsistent stands on the part of the claimant, as he has stated that he was working with the company since last one year whereas his witness, Shyamjibhai has stated that claimant was working from last three to four months with the company. 8.2 In evidence of witness of the company, it is stated that the claimant was not working with the company and said witness is not cross-examined by the claimant on that point. In that view of the matter, considering the evidence of different witnesses and documents on record, I am of the opinion that the view taken by the authority is contrary to evidence on record. The claimant was not an employee of the appellant herein and was not employed by the company. In that view of the matter, the order passed by Workmen Compensation Commissioner is required to be quashed and set aside. Accordingly, the order impugned herein is quashed and set aside and the appeal is allowed. The appellant is allowed to withdraw the amount deposited by it, if it is not yet withdrawn by the claimant. 9. Learned advocate for respondent no.2 has stated that there is no evidence against respondent no.2 also and in view of provisions of Order 41, Rule 33, order passed against him is also required to be quashed and FA/369/2001 5/5 JUDGMENT set aside. It is true that there is no finding against respondent no.2, therefore, the order of the authority is also required to be quashed and set aside against respondent no.2. Accordingly, impugned order is quashed and set aside against respondent no.2. 10. In view of above observations, this appeal is allowed with no order as to costs. 11. Learned advocate, Mr.Bhatt, appearing for the claimant requested that the appellant may be restrained from withdrawing the amount as respondent no.1 would like to approach higher forum. In my view, the procedure with regard to withdrawal of amount will take at least one month's time, therefore, the procedure for withdrawal of the amount may be undertaken but the Workmen Compensation Commissioner is directed to issue cheque in favour of the appellant only after 15th October, 2008. (K.S.Jhaveri, J.) *malek