Hon'ble Dinesh Gupta,J.
(Delivered by Hon'ble Rajes Kumar, J.) This is an appeal under Section 30 of the Employee's Compensation Act, 1923 against the order dated 4.3.2014 passed by the Commissioner Workmen's Compensation, Shahjahanpur, by which he has rejected the claim petition filed by the appellant.
The appellant, who claims herself to be the wife of late Azaz Ahmad, filed claim petition before the Commissioner Workmen's Compensation claiming compensation from the respondent on the ground that her husband late Azaz Ahmad was in employment with the respondent as a driver and on 5.6.2010 when he was on duty in Bus, bearing registration No. U.P. 75-7903 as a driver, he died. He was aged about 35 years. The statements of the appellant and Mohd. Ayub were recorded as P.W. 1 and P.W. 2, however, in the absence of signature of Presiding Officer, the said statements have not been treated as an evidence.
The respondent filed written statement, stating therein, that late Azaz Ahmad left the service 10-12 days before the date of alleged incident and said vehicle was being driven by Asif Khan, son of Buddha Khan, and had denied that late Azaz Ahmad was the driver on the date of his death and he died in the course of employment. The statement of Sri Asif Khan was also recorded in which he categorically stated that on 5.6.2010 he was engaged as a driver of the vehicle No. U.P. 75-7903 and was being engaged 10 days before as a driver. On the instruction of the owner of the vehicle, he had gone along with the Barat of Sri Ram Chandra Pandit to Faridpur District Bareilly with the bus in which Surjeet was the conductor and when the Barati had gone for breakfast, he had also gone along with them and when he came back, he found that Azaz Ahmad was lying in drunken stage and when he has seen that Azaz Ahmad was dead. He stated that Azaz Ahmad was not engaged as a driver in the said bus nor he died in the course of employment. On the basis of evidence on record, the Commissioner Workmen's Compensation arrived to the conclusion that Azaz Ahmad was not in employment as a driver with the respondent on the date of alleged death and the said death was not in the course of employment and accordingly claim petition has been rejected.
Learned counsel for the appellant submitted that one Mohd. Sartaj has lodged a report on 6.6.2010 at 11-00 p.m. on the basis of which entry was made in G.D. In the report, it is stated that Azaz Ahmad was the driver of Bus No. U.P. 75-7903 and he had gone to Faridpur District Bareilly from Gram Gauri Kheda with Barat. In the statement, the appellant has categorically stated that Azaz Ahmad was appointed as a driver of Bus No. U.P. 75-7903, owned by Sri Ram Prakash Singh, and on the order, he had taken the Barat in Bus on 5.6.2010 from Gram Gauri Kheda to Faridpur District Bareilly and during the period of duty, he died. It is stated that after the death, the Barati and the owner of the bus, had left the body at the door of his house. His brother Siraj Ahmad filed a report on the basis of which postmortem was conducted. He was getting Rs.5,000/- per month and Rs.50/- per day for diet. Sri Mohd. Ayub has also stated in his statement dated 24.10.2011 that Azaz Ahmad was engaged as a driver of vehicle no. U.P. 75-7903 and I got the vehicle engaged for Barat through Azaz Ahmad. Azaz Ahmad had gone with the bus as a driver, carrying the Barat from Gram Gauri Kheda to Faridpur District Bareilly and was on duty, he died. He was carrying on the business of steering. He stated that he had the business of steering and the bus used to stand on the road and Azaz Ahmad every day used to take the bus from there and again used to park the same after the return. He submitted that both the statements have not been considered on the ground that in the statements there was no signature of the Presiding Officer. He submitted that the proceeding before the Workmen's Compensation Act is a summary proceeding and merely because the signature of the Presiding Officer was not available on the statements, the statements should not be ignored. He submitted that since the vehicle was not insured, the owner of the vehicle would be liable to pay the compensation. In order to avoid the payment of compensation, he denied the the employment of Azaz Ahmad as a driver and his death during the course of employment.
We have considered the submissions of learned counsel for the appellant.
We do not find substance in the argument of learned counsel for the appellant.
Section 3 of the Workmen's Compensation Act, 1923 provides employer's liability for compensation. Section 3(1) says that if personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter. For invoking the provisions, necessary ingredients are that there should be relationship of the employer and employee and the injury is caused by accident arising out of and in the course of his employment. The owner of the vehicle categorically denied the employment of Azaz Ahmad and stated that he was not in employment and left the service 10-12 days before the date of alleged incident. His statement was fully supported by Sri Asif Khan. In his statement, he has categorically stated that he was engaged as a driver of the Bus No. U.P. 75-7903 and had taken the bus from Gram Gauri Kheda to Faridpur District Bareilly with Barat of Sri Ram Chandra Pandit on the fateful day. The claimant is not able to adduce any evidence in support of the claim that Azaz Ahmad was in employment as a driver with respondent on 5.6.2010 and was driving the Bus No. U.P. 75-7903 on the said date. It is also relevant to mention here that Section 3 of the Workmen's Compensation Act can be invoked only when the personal injury is caused by accident arising out of and in the course of his employment. The claimant is not able to produce any evidence that what was the cause of injury and the death of Azaz Ahmad in the course of his employment. The nature of accident has also not been disclosed.
In view of the above, we are of the view that the appellant failed to make out a case that there was a relationship of employer and employee between the respondent and Azaz Ahmad and his death was caused in the course of employment.
The findings of the Commissioner of Workmen's Compensation are finding of facts based on material on record. The appeal fails and is dismissed.
Dated: 23rd May, 2014 OP