UMESH SAXENA Vs. ASHARFI LAL

JUDGEMENT

(1.) THE present appeal is directed against the order dated Oct. 4, 1990, of Commissioner for Workmen's Compensation, Delhi, wherein the respondent Shri Goverdhan Dass, who is now represented by his legal representatives, was awaded compensation for the amount of Rs. 33600/- and imposition of penalty amount of Rs. 10,000/- and interest per cent per annum on the compensation amount from the date of the accident, till the dale of actual recovery. The learned Commissioner noticed that the appellant Umesh Saxena in his statement on oath had already admitted that the respondent Goverdhan Dass used to drive the car to take him to his office from his house and vise versa. He has also admitted that the respondent used to drive car to outstation, as well as, for the performance of his official duties, as manager of M/s. Milk Food Ltd. The averment of the appellant, Mr. Umesh Saxena that respondent Shri Goverdhan Dass, was employed by him in his personal capacity and that he himself was the owner of the vehicle, was not believed by the Commissioner on appreciation of evidence on record. The Commissioner further concluded that if the respondent driver was not an employee of M/s. Milk Food Ltd. and was employed by Shri Umesh Saxena, only in his personal capacity as his driver to drive his car No. PJP 414, then it was his bounden duty to rebut the allegations of the respondent by producing oral and documentary evidence and such other documents, attendance and wage register, maintained by M/s. Milk Food Ltd. for its employees, so as to prove that the name of the respondent did not exist on the roll of the said company. This having not been done, an adverse presumption would, therefore, be justified.

(2.) THE learned Counsel, appearing for the respondents, has contended that the deceased Goverdhan Dass was employed by the company and the award in his favour, is in accordance with law. He has also submitted that the appellants were summoned as Manager and employees of the Company and the same is borne out from the summons, issued in this regard, which indicated that Shri Umesh Saxena was Manager of Milk Food Ltd. and the respondent Shri Goverdhan Dass was employed in the services of the said company. Reference is also made to the statement of the deceased Shri Goverdhan Dass, in which he has categorically staled that he was working with M/s. Milk Food Ltd. for the last 3 years on a monthly salary of Rs. 700/-, and his duty hours were from 7 a. m. in the morning to 8 or 9 p. m. in the evening. Reference may also be made to the following paragraph in the award of the Commissioner: "on the other hand, the petitioner has claimed that he used to get wages, advance and imprest money from the company on voucher. He has also filed a photo copy of voucher No. 9993 dated 24. 4. 83 issued to him by Milk Food Ltd. and vide this receipt of the said M/s. Milk Food Ltd. has acknowledged receipt of Rs. 100/- towards "receipt of advance", which has duly been exhibited as MW1/1 and has duly been admitted by respondent No. 1 Mr. Umesh Saxena in his cross-examination. Had there been no relationship of employer and employee between M/s. Milk Food Ltd. and the petitioner then the said M/s. Milk Food Ltd. would not have given him advance to be refunded by the said petitioner to the company M/s. Milk Food Ltd. Again the respondent has also not disclosed as to on what account the money was advanced to the petitioner and all these lead again to the logical conclusion that there was due relationship of employer and employee between M/s. Milk Food Ltd. through its Manager Mr. Saxena and the petitioner".

(3.) THE said averment that the respondent was employed by the Company, has been accepted by the Commissioner and it has been held that no doubt, the respondent had not adduced any corroboratory evidence, but the same is the case with the appellant Umesh Saxena, Manager of Milk Food Ltd. , who apart from examining himself and his own wife Mrs. Asha Saxena produced no independent witness in support of the contentions nor had he produced any employee of the Milk Food Ltd. in this regard. The said Mr. Umesh Saxena was manager of Milk Food Ltd. and there existed relationship of employer and employee between the said Mr. Umesh Saxena, Manager of Milk Food Ltd. and also M/s. Milk Food Limited, through its manager and the respondent herein.