PRAVINBHAI S KHAMBHAYATA Vs. RAMESH LALMANI YADAV

JUDGEMENT

(1.) THIS appeal under section 30 of the Workmen s Compensation Act, 1923 (now Employees Compensation Act, 1923) (hereinafter referred to as "the Act"), is directed against the judgement and award dated 11th November, 2013 passed by the Commissioner, Workmen s Compensation, Labour Court, No.1, Rajkot (hereinafter referred to as "the Commissioner") in W.C. Fatal Case No.29 of 2005, whereby the Tribunal has exonerated the respondent No.5 Insurance Company from the liability to pay compensation and has held the appellant and the respondent No.4 jointly and severally liable to pay the compensation of Rs.3,25,365/ - to the respondents No.1 to 3 original claimants.

(2.) THE facts giving rise to the present appeal are that the respondents No.1 to 3 filed a claim petition before the Commissioner stating that the respondent No.1 herein was the father of the deceased, the respondent No.2 was the mother of the deceased and the respondent No.3 was the wife of deceased Ramesh Lalmani Yadav. It was the case of the claimants that the deceased was working as a cleaner in the employment of the respondents No.1 and 2. That on 20.05.2002, the deceased was working as a cleaner in respect of the vehicle bearing No.GJ -3 -V -7785. At about 12:30 hours in the afternoon, he had opened the radiator and was filling water in it, when suddenly the bonnet fell down and the deceased sustained serious injuries on his head and fell down and died. The postmortem was carried out at the Government Hospital. It was the case of the claimants that the deceased was earning Rs.3,000/ - per month and was also provided with the meals and residence. In all, the deceased was earning salary of Rs.3,800/ - per month. According to the claimants, the deceased sustained injuries in the course of his employment and had succumbed to them and as such, all the opponents, namely, the appellant as well as the respondents No.4 and 5 were liable to pay the compensation to the claimants despite which, they have not paid such compensation. It was the case of the claimants that at the time of the accident, the deceased was aged 24 years and keeping in view his monthly salary of Rs.3,800/ -, they were entitled to compensation of Rs.4,15,093/ -. Since the same was not paid within the prescribed period, 50% penalty was required to be imposed in addition to the compensation with interest at the rate of 18% per annum.

(3.) THE Commissioner, after appreciating the evidence on record, took note of the fact that a first information report Exhibit -24 had been lodged by the driver of dumper bearing No.GJ -3 -V -7785 on 20.05.2002, wherein he had stated that on that day in the afternoon, at around twelve o clock, he was reversing the dumper at Sothvad Quarry, at that time, his cleaner Ramesh was filling water in the radiator of another dumper which was lying in a stationary condition. At that time, while filling the water, his leg slipped on account of which, the bonnet fell on his head and he fell down. Thus, the deceased had not died while discharging duties in relation to dumper bearing No.GJ -3 -V -7785, but truck bearing No.GJ -3U -5391. The Commissioner, accordingly, found that since the insurance policy produced on record was in relation to the vehicle bearing No.GJ -3 -V -7785, which was not involved in the vehicular accident, the Insurance Company cannot be held liable and accordingly, held that in these circumstances, the original opponents No.1 and 2, namely, the appellant and the respondent No.4, in their capacity as owners of the offending vehicle were jointly and severally liable to pay the compensation. The Commissioner further took note of the fact that no evidence had been brought on record to show that the other vehicle, namely, vehicle bearing No.GJ -3U -5391 was insured with the original opponent No.3 Insurance Company. Being aggrieved, the appellant original opponent No.2 is in appeal.