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United India Insurance Company Ltd., v/s R. Porkodi & Others

    C.M.A.(MD).No. 1250 of 2014 & M.P.(MD).No. 1 of 2014

    Decided On, 30 March 2015

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN

    For the Appellant: C. Jawahar Ravindran, Advocate. For the Respondents: R1 to R3, M.S. Jeyakarthik, R4, V. Meenakshisundaram, Advocates, R5, No appearance.



Judgment Text

(Prayer: Appeal filed under Section 30(1) of the Workmen Compensation Act, against the order passed in W.C.No.209 of 2006 dated 25.09.2014 on the file of the Deputy Commissioner of Labour, Dindigul.)

1. The appellant is the insurance company which is the 3rd respondent in W.C.No.209 of 2006 on the file of the Deputy Commissioner of Labour, Dindigul.

2. W.C.No.209 of 2006 was preferred by the respondents 1 to 3 herein who are the claimants in W.C.No.209 of 2006. The 1st respondent herein is the wife of the deceased Rajendran. The respondents 2 and 3 are the daughters of the deceased Rajendran born through the 1st respondent. The deceased Rajendran drove the Car bearing registration No.TN-07-L-7668 and he died in a road accident on 06.10.2004 while he was driving the Car. The said Car is owned by the 5th respondent herein. The relationship between the respond

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ents 4 and 5 is not known. The deceased was employed with the 4th respondent/Kovaithangam in 1996. Ex.P1 is a letter issued by the 4th respondent addressed to the Regional Transport Officer, Coimbatore on 14.03.1996 stating that the deceased Rajendran was working as a Car driver for the past six months. The family of the deceased included the 4th respondent also as one of the parties before the Deputy Commissioner of Labour. They sought for compensation from both the respondents 4 and 5 herein. They also made the appellant insurance company as one of the parties to claim compensation since the Car involved in the accident was insured with the appellant insurance company and the same is not in dispute.

3. Before the Deputy Commissioner of Labour, the 5th respondent did not choose to appear and remained ex parte and did not also file any counter statement. But the registration of the car as well as the insurance policy of the car stand in the name of the 5th respondent.

4. The 4th respondent herein filed counter statement stating that the deceased Rajendran was not employed by him at the time of accident and therefore, he was not a necessary party. While so, the Deputy Commissioner of Labour passed an order on 30.08.2006 deleting the 4th respondent as one of the parties to W.C.No.209 of 2006, on the ground of misjoinder of party. The same is found in the order dated 25.09.2014 in W.C.No.209 of 2006 impugned in this appeal.

5. Before the Deputy Commissioner of Labour, the 1st respondent/claimant examined herself as PW1 and Exs.P1 to P11 were marked on the side of the claimants. On the side of the appellant insurance company, one witness was examined and Exs.R1 to R3 were marked.

6. The claimants who lost their breadwinner knew that the deceased was a driver employed in the Car. However, they did not know about the ownership and other particulars of the Car. Hence, they stated in paragraph 3 of the claim petition that the 4th respondent is the de facto owner and the 5th respondent is the de jure owner of the Car bearing registration No.TN-07-L-7668. However, we are not concerned with the ownership of the Car. Even according to the claimants, the owner is the 5th respondent herein.

7. The letter dated 14.03.1996 issued by the 4th respondent to the Regional Transport Officer, Coimbatore, stating that the deceased was in employment for the past six months as a driver of his Car, was available with the family of the deceased and hence they marked the same as Ex.P1. Based on the same, the case of the insurnace company was that the deceased did not work under the 5th respondent but worked under the 4th respondent. But the Deputy Commissioner of Labour passed an order on 30.08.2006 stating that the 4th respondent is the misjoinder of party, thus deleted him from the cause title. The same was also not questioned by the appellant insurance company, thus attained finality. The Deputy Commissioner of Labour based on the evidence came to the conclusion that the deceased was a workman as driver employed by the 5th respondent and hence the appellant insurance company is liable to pay the compensation. Accordingly, the Deputy Commissioner of Labour passed an order dated 25.09.2014 in W.C.No.209 of 2006. This appeal is against the aforesaid order.

8. Heard both sides.

9. The learned counsel for the appellant has relied on paragraph 3 of the claim petition in W.C.No.209 of 2006 and Ex.P1 and submitted that the deceased was a workman employed by the 4th respondent. Therefore, the appellant company is not liable to pay compensation and the order of the Deputy Commissioner of Labour has to be reversed.

10. On the other hand, the learned counsel for the 4th respondent submitted that the Deputy Commissioner of Labour as early as on 30.08.2006 deleted the 4th respondent as a party to the proceedings in W.C.No.209 of 2006. Hence, he could not be mulcted with liability as contended by the appellant insurance company. He brough to my notice the counter statement more particularly paragraph 4 therein.

11. The learned counsel for the respondents 1 to 3/claimants also sought to sustain the order.

12. I have considered the submissions made by either side.

13. The learned counsel for the appellant relied on paragraph 3 of the claim petition which is as follows:-

“3. The applicants beg to submit that the 1st respondent is the defacto owner and the 2nd respondent is the dejure owner of the “Ford-Ikon” car bearing registration No.TN.07.L 7668.”

14. But a definite view cannot be taken from paragraph 3 of the claim petition that the deceased was employed by the 4th respondent particularly, when the 4th respondent denied the same in his counter statement. In paragraph 4 of the counter statement, the 4th respondent stated as follows:-

“The first respondent stoutly denies the master and servant relationship between the deceased Rajendran and him. The deceased Rajendran was not the employee of the 1st respondent. He is also not the owner of the car.”

15. Furthermore, in paragraphs 4 and 5 of the claim petition, the claimants have simply stated that the deceased was a driver employed in the Car and was discharging his duty. Paragraphs 4 and 5 of the claim petition are also extracted hereunder:-

“4. Mr.Rajendran, son of Late.Ramasamypillai, was employed as driver in the said car. While so he was paid Rs.5,000/-(Rupees Five Thousand) as wages per month and Rs.150/-(Rupees One Hundred and Fifty) as batta per day totalling Rs.9,500/-(Rupees Nine Thousand Five Hundred) per month.

5. On 06.10.2004, when Mr.Rajendran, was engaged in discharging his duties, in the course of his employment, met with an accident at first cross main road, Bharathi park road, Coimbatore and sustained multiple, grievous and fatal injuries, which resulted in his instantaneous death. A case is also registered in Traffic Investigation Wing (Central) Police Station, Coimbatore in crime No.382/2004.”

16. Much reliance on Ex.P1 cannot be placed by the appellant particularly, when the same was issued seven years before the accident. The letter dated 14.03.1996 marked as Ex.P1 is extracted hereunder:-

“Thiru.R.Rajendran S/o. Ramasamy Pillai residing at R.A.Krishna Nagar Saibaba Colony K.K Pudur Post, Coimbatore 641038, is working as my car driver for the past six months.

This is for your information.”

17. As per Ex.P4-FIR, at the time of accident, the son of the 4th respondent was travelling in the Car and the deceased was driving the Car. However, that will not make the deceased as workman of the 4th respondent. The relationship between the respondents 4 and 5 is not known. There is no evidence produced by the appellant that the deceased was paid by the 4th respondent. In fact, Ex.R3-Motor Vehicle Inspector's Report prepared under rule 378 of the Tamil Nadu Motor Vehicle Rules, 1989 filed by the appellant establishes that the deceased was employed by the 5th respondent. Further, the order passed by the Deputy Commissioner of Labour also discloses that the 4th respondent was deleted as a party to the proceedings in W.C.No.209 of 2006. The following passage in this regard is extracted hereunder:

“TAMIL”

18. Both the Insurance Policy and the Registration Certificate of the Car stand in the name of the 5th respondent. The only question of law raised by the appellant is that there was no employer-employee relationship between the deceased and the 5th respondent and in view of the above discussion, the same is answered against the appellant.

19. In the result, the Civil Miscellaneous Appeal is dismissed. No costs. The 1st respondent/claimant is permitted to withdraw the entire award amount lying in the credit of the claim petition. Consequently, MP(MD)No.1 of 2014 is closed.
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