SHANTABEN PITAMBARBHAI VANKAR Vs. JITENDRA KUMAR LAKSHMICHAND SHAH

JUDGEMENT

(1.) BY way of this appeal the appellants, who are heirs of deceased, have challenged judgment and award dated 29. 10. 2007 of the Workmen's Compensation Commissioner, Nadiad, whereby the case filed by the appellants was dismissed. As per the case of the appellant, late pitambarbhai Virabhai was working as a driver with respondent No. 1 and was getting monthly salary of Rs. 750 and Rs. 20 as daily allowance. When the deceased met with an accident on 23. 4. 1988, he was 35 years. Considering the age of the deceased, claim of Rs. 1,50,000 with penalty and interest was claimed. Original opponent No. 1 filed his written statement before the commissioner at Exh. 13. He contended that at the time of accident, he was not the owner of the truck and the respondent no. 3 was owner of the truck at that time. Respondent No. 1 had also filed application, Exh. 14 to delete him from the proceedings on the ground that opponent No. 3 was owner of the vehicle. Workmen's compensation Commissioner allowed said application and ordered to delete opponent no. 1 from the proceedings. Therefore, the appellants filed an application, Exh. 16 to join Naranbhai Bhalabhai Patel as opponent No. 3, which was allowed by order dated 19. 9. 1990. Thereafter, issues were framed on 16. 1. 2003. Thereafter, appellants led their evidence and the matter was kept for evidence of the opponent. At that time, opponent No. 3 filed an application at Exh. 42 to delete him on the ground that he is not the owner of the truck and the truck is in possession of Sanjay Jayantilal shah. That application was allowed by the workmen's Compensation Commissioner by order dated 23. 9. 2004. Thereafter, the appellants applied to join legal heirs of jayantilal Shah and notices were issued to them. As said notices returned back with an endorsement that said person had died, learned Workmen's Compensation Commissioner passed an order dated 27. 4. 2007 holding that claim against opponent No. 1 is abated. Thereafter, the impugned judgment is passed holding that since the application against opponent No. 1 is abated and opponent No. 3 is deleted, no effective decree can be passed against opponent No. 2.

(2.) HEARD learned advocates appearing for respective parties. Learned advocate, mr. K. R. Dave for the appellants submitted that the learned Workmen's Compensation commissioner was wrong in holding that case against opponent No. 1 was abated and, therefore, no effective decree can be passed against opponent No. 2. He also submitted that when the appellants applied to issue notices to heirs of opponent No. 1, notice was issued in the name of original opponent No. 1, who had died earlier, therefore, there was a mistake in issuing notice. Accordingly, he prayed to allow this appeal. While the advocates appearing on behalf of the respondents supported the judgment of Workmen's Compensation commissioner and prayed to dismiss this appeal.

(3.) I have considered the submissions made on behalf of the appellants and also gone through the judgment of Workmen's compensation Commissioner and other relevant documents. After considering the evidence on record, Workmen's Compensation Commissioner came to the conclusion that application against opponent No. 1 was abated and the opponent No. 3 was deleted by order passed below Exh. 43 and exh. 48 respectively. It is also rightly held that since the original owner was deleted from Workmen's Compensation case, no decree can be passed against the insurance company. I am in complete agreement with the reasonings given and finding arrived at by the Workmen's Compensation Commissioner while passing impugned order. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment.