Reserved On 25.02.2019 Delivered On 31.05.2019.
Case :- FIRST APPEAL FROM ORDER No. - 899 of 2008 Appellant :- The New India Assurance Company Ltd.
Respondent :- Smt. Arti Devi And Others Counsel for Appellant :- S.C. Srivastava Counsel for Respondent :- Vidya Kant Shukla
Hon'ble Saral Srivastava,J.
1. Heard Sri S.C. Srivastav, learned counsel for the appellant and Sri Vidya Kant Shukla, learned counsel for the claimants/respondents.
2. The present appeal is directed against the judgement and order dated 30.01.2008 passed by the Commissioner Workmen Compensation Act, 1923/Assistant Labour Commissioner, Kanpur Region, Kanpur whereby the Commissioner has allowed W.C. Case No. 13 of 2007 of claimants/respondents.
3. The brief facts giving rise to the present appeal are that one Sunil Kumar was stated to be employed as driver on Maruti Car No. U.P.-71-E- 7187 (hereinafter referred to as 'Car') owned by Ayoddhya Prasad- respondent no.3. On 23.12.2006 on the instructions of respondent no.3, Sunil Kumar was driving the car from Shahjahanpur to Kanpur. At about 7 am when he reached near Bhramdev Temple on G.T. road, the car dashed with a stationary tanker No. U.P.-78-T-2201. As a result of the said accident, Sunil Kumar suffered injuries and died. In the aforesaid backdrop, respondent nos.1 and 2 instituted a claim petition praying for a compensation of Rs.4 lac and further prayed that penalty be imposed for delay in payment of compensation.
4. The claim petition was contested by respondent no. 3 by filing written statement whereby he denied the employment of deceased Sunil Kumar as driver of the car. It was further pleaded that he used to give car to persons known to him, who arranges the driver. He admitted in the written statement that Sunil Kumar was driving the car at the time of the accident. It was further pleaded that he give car on the fateful day to one Hemant Patel, who wanted to travel to Kanpur along with his sister as his sister was to appear in the examination at Kanpur. The relevant paragraphs of written statement of owner denying the employment of deceased Sunil Kumar is extracted herein below:-
“9. यह िकि मतकि किभी भी िविपक्षी स.१ किा किमरचारी नहीं रहा अतः उसकिा किोई दाियत्वि छतितपूर्तितर देने किा नहीं बनता.
12. यह िकि दाविे किी तहरीर से भी यह बात सत्य सािबत हो जाती ह िकि मतकि उसकिा किमरचारी नहीं था".
5. The appellant-insurance company also filed written statement wherein it had denied the factum of the accident. It was further pleaded that there was no relationship of employer and employee between deceased and the owner of car. It was also pleaded that in case premium of the policy is not paid and car was not plied with valid papers, the insurance company shall not be liable to pay compensation.
6. The respondent nos.1 and 2 produced one Smt. Arti Devi, wife of deceased Sunil Kumar, as witness before the Commissioner who stated that her husband Sunil Kumar is employed as driver on the car of respondent no.3 and was getting salary of Rs.3500/- per month. She also stated that on the fateful day, her husband Sunil Kumar had left the house at about 5.00 am for the duty and had died during the course of employment.
7. Respondent nos.1 and 2 also produced one Pramod Kumar, brother of deceased Sunil Kumar, as witness before the Commissioner who also corroborated the statement of Smt. Arti Devi by stating that deceased was employed as driver on the car of respondent no.3 and was drawing salary of Rs. 3500/-.
8. The owner of the car also appeared before the Commissioner as witness and has categorically denied the employment of the deceased with him. He further stated that he has never employed deceased Sunil Kumar as driver nor Sunil Kumar had ever driven his car before the date of accident. He further stated that the car was taken by one Hemant Patel, who told respondent no.3 that he would arrange a driver. It was Hemant Patel, who had arranged the driver. He also categorically denied that he has ever paid salary to the deceased.
9. It reflects from the judgement of the court below that during the course of argument, the owner had filed an affidavit on 14.11.2007 stating therein that deceased was his driver and the earlier statement wherein he denied the employment of deceased was false. The insurance company filed objection to the affidavit of owner dated 14.11.2007 wherein it has stated that owner in order to avoid his liability to pay compensation has filed a false affidavit.
10. The Commissioner though under Rule 28 of the Workmen Compensation Rules, 1924 was obliged to frame issues on the basis of the pleadings of the parties, but he did not frame any issue. However, in coming to the conclusion that deceased was employed as driver on the car, it placed reliance upon the affidavit of owner dated 14.11.2007 and has completely ignored the statement of owner recorded by him wherein he had completely denied the employment of deceased Sunil Kumar with him. The Commissioner further noticed the fact that documentary evidence filed on record indicates that deceased was driving the car at the relevant time which was also corroborated by the testimony of Smt. Arti Devi, wife of the deceased, and Pramod Kumar, brother of deceased. The Commissioner after noticing the aforesaid facts and evidence, returned a finding that deceased was employed as driver of car and had died due to the injuries suffered by him in an accident during the course of employment.
11. Challenging the aforesaid award, the only contention advanced by the learned counsel for the appellant is that the owner of the car in his written statement has categorically denied the employment of the deceased as driver, and the averments made in the written statement by the owner was duly proved by him by giving statement before the Commissioner on 14.08.2007. He further contends that Hemant Patel had also appeared as witness and has categorically stated that Sunil Kumar was not the driver of respondent no.3 and in fact, he had taken the car to take her sister to Kanpur as she had to take her examination. He further stated that on his request, Sunil Kumar agreed to drive the car to Kanpur. Thus, the Commissioner has acted illegally in recording a finding that deceased was employed as driver on the basis of affidavit of owner dated 14.11.2007 which was not proved by the oral testimony of DW-2 i.e., respondent no.3.
12. The further submission is that there was specific case of the owner in the written statement that deceased was not employed as driver on his car, therefore, Commissioner has erred in law in relying upon the affidavit dated 14.11.2007 of owner without any pleading to this effect in the written statement inasmuch as, it is settled in law that evidence cannot be read in absence of pleadings. He further submits that from the record, it is evident that finding of the Commissioner in respect of employment of deceased as driver on the car is perverse and not sustainable in law.
13. Per contra, learned counsel for the respondents contends that it was not in dispute that at the relevant time, Sunil Kumar was driving the car. He further submits that the employment of deceased was proved by the claimants by producing Smt. Arti Devi, wife of deceased Sunil Kumar and Pramod Kumar, brother of deceased, who have clearly stated that deceased was employed as driver on the car, and only to avoid his liability owner has denied the employment of deceased in the written statement and further, gave statement to this effect before the Commissioner, but later on respondent no.3 realized his mistake and submitted an affidavit on 14.11.2017 wherein he admitted the employment of deceased as driver on the car.
14. I have considered the rival submissions of the parties and perused the record.
15. The only issue which emerges in the present case is as to whether the Commissioner has rightly relied upon the affidavit of owner dated 14.11.2007 while ignoring the written statement and testimony of owner dated 14.08.2007 and Hemat Patel dated 30.07.2007 to record finding of employment of deceased in favour of claimants/respondent nos.1 and 2.
16. In the case in hand, it is evident from the written statement that owner has completely denied the employment of deceased. The relevant paragraph of the written statement of the owner denying the employment of deceased have been extracted above. Further, it is also manifest from the record that owner in his testimony recorded before the Commissioner on 14.08.2007 clearly denied the employment of deceased as driver of car which was further corroborated by Hemant Patel in his testimony given before the Commissioner on 30.07.2007 wherein he has also categorically denied the fact that deceased was employed as driver on the car. In fact, Hemant Patel had categorically stated that he knew deceased Sunil Kumar and on his request, Sunil Kumar had agreed to drive the car on the fateful day.
17. It also transpires from the record that the alleged affidavit of the owner dated 14.11.2007 was filed during the course of argument and it was only two paragraph affidavit which is extracted herein below:-
“यह िकि शापतकितार उपरोक्त विाद मे िविपक्षी विाहन स्विामी है अतः हालात मक़दमे से विविूर्तती विािकिफ हूँ.
यह िकि िदनांकि २२.०९.२००७ किो यािचनी द्वारा मृतकि किा डी.ल. दािखिल िकिया गया है और वित्रमान किमरकिार छतितपूर्तितर अिधिनिनयम किे अतगरत विह मेरा डर ाइविर है. इसकिे पहले जो न्यायलय किे समक्ष बयान िदया था िकि मृतकि उसकिा डर ाइविर नहीं है विह गलत है अब उसकिो अपना डर ाइविर मानता हूँ.”
18. This affidavit was categorically denied by the insurance company by filing objection on 30.11.2007. Further the aforesaid affidavit of owner does not disclose as to how and in what circumstances he had denied the factum of accident in the written statement and also in his statement recorded before the Commissioner on 14.08.2007. Further, the owner- respondent no.3 did not appear before the Commissioner to prove the averments made in the affidavit dated 14.11.2007. Thus, the affidavit dated 14.11.2007 is totally contrary to the stand of the owner taken by him in his written statement and his statement before the Commissioner on 14.08.2007. The order of the Commissioner further reveals that it has not considered at all the testimony of Hemant Patel, who had categorically denied the fact that deceased was employed as driver on the car. Though, it is established from the record that the deceased was driving the car at the relevant time but merely because deceased was driving the car at the time of accident does not ipso-facto establish that deceased was employed as driver on the car. It is also settled in law that evidence cannot be read in the absence of pleading.
19. From the facts stated above, it is evident that there was no averment in the written statement of owner admitting the employment of the deceased and consequently, in the opinion of the Court, the Commissioner has erred in placing reliance upon the affidavit of owner dated 14.11.2007 while ignoring the averments made in the written statement, statement of owner recorded before the Commissioner on 14.08.2007 and also testimony of Hemant Patel who has denied the employment of deceased as driver on the car. Thus, in view of the facts stated above, the finding of the Commissioner as regards the employment of deceased is perverse and against the record and is not sustainable in law.
20. Thus, in view of the facts stated above, the aforesaid question is answered in favour of the insurance company and consequently, the judgement of the Commissioner being non sustainable is set aside. The appeal is allowed.
21. However, in the interest of justice, amount paid to the claimants/respondents under the interim order of this Court shall not be recovered from them.
Order Date :- 31.05.2019 Sattyarth