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2019 Supreme(Kar) 972
IN THE HIGH COURT OF KARNATAKA
B. VEERAPPA, J.
B.H. Abdul Hameed — Appellant
Versus
Monappa — Respondent
Miscellaneous First Appeal No. 918 of 2016
Decided on : 19-06-2019
Advocate Appeared:
Guruprasad B.R., Adv., Ashok N. Patil, Adv.
Headnote:
Workmens Compensation Act - Section 3 - Employees Compensation Act, 1923 - Section 2(1)(dd) - FIR - Claim petition- Case of appellant/claimant that he was working as a cleaner in lorry owned by first respondent and when logs were being unloaded from lorry driver of lorry suddenly moved vehicle back- As a result claimant/cleaner who was standing behind lorry was hit by log which fell from lorry- Due to impact claimant sustained fracture of both bones of left leg owner of saw mill lodged police complaint jurisdictional police registered FIR -Therefore claimant filed claim petition seeking compensation –Held, Case of an injury caused to a workman by accident arising out of and in course of employment- Thus an employee has to cross threshold bar by tendering evidence and establishing fact that he was employed by his employer in event of there being a denial by employer- In instant case as noticed hereinabove there is total denial of relationship- When such being case contention that self-serving testimony was sufficient to accept that there exists relationship of employer and employee between parties and on account of non-examination of driver of lorry by claimant it has to be inferred that there exists relationship of employer and employee is to be examined with circumspection case there is no material of whatsoever nature produced to hold that such relationship exists- Self- serving testimony would not be safe to rely upon particularly in view of employer denying relationship by not only filing statement of objections but also when he has entered witness-box and denied such relationship- In absence of said material it cannot be that there exists any relationship of employer and employee - Except self-serving testimony of claimant there was no other material produced by claimant to establish relationship of employer and employee in instant case- Hence contention of respondents counsel that owner of vehicle employer had to prove that there was no relationship by examining driver of vehicle cannot be accepted as it would amount to calling upon a party to tender negative evidence- As such court of considered view that claimant has failed to establish that there exists relationship ofemployer and employee aforesaid reasons and specific denial by owner of vehicle and in absence of examination of either owner or complainant substantial question of law framed in this appeal has to be answered in affirmative holding that Commissioner is justified in not believing -Therefore no substantial question of law is involved in this appeal - Appeal dismissed
JUDGMENT :
B. Veerappa, J.
The claimant filed the present appeal against the judgment and Order dated 27.11.2015 made in ECA No.3/2014 on the file of the Prl. Senior Civil Judge and Commissioner for Employees Compensation, Belthangady, dismissing the claim petition.
2. It is the case of the appellant/claimant that he was working as a cleaner in the lorry owned by the first respondent and on 21.05.2010 when the logs were being unloaded from the lorry, the driver of the lorry suddenly moved the vehicle back. As a result the claimant/cleaner who was standing behind the lorry was hit by the log which fell from the lorry. Due to the impact, the claimant sustained fracture of both bones of left leg. The owner of the saw mill lodged police complaint as per Ex.P.2. The jurisdictional police registered FIR as per Ex.R.1. Therefore, the claimant filed claim petition seeking compensation.
3. The first respondent, owner of the lorry filed objections and denied the averments that the claimant was working as cleaner under the first respondent, as on the date of the accident, as alleged. The lorry was insured with the second respondent. He also denied the fact that the accident occurred on 21.05.2010. Once the relationship between the claimant and first respondent as master and servant is denied, the question of entitlement for Rs.3,00,000/- as compensation would not arise and therefore, sought for dismissal of the claim petition.
4. Considering the averments made in the claim petition and the objections raised, the Commissioner for Employees Compensation, framed the following issues:
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5. In order to establish his case, the claimant examined himself as P.W.1, examined the doctor as P.W.2 and marked documents Exs.P.1 to P.5.
6. After considering the material on record, the Commissioner recorded a finding that the claimant failed to prove that he is an employee as contemplated under Section 2(1)(dd) of the Employees Compensation Act, 1923, and failed to prove that he was a working as a cleaner and the accident occurred during the course of employment. When the claimant is not an employee, the question of payment of compensation would not arise. Accordingly, the Commissioner for Employees Compensation, by the impugned judgment and order, dismissed the claim petition,. Hence the present appeal is filed by the claimant.
7. I have heard the learned counsel for the parties to the lis.
8. The Sri Guruprasad, learned counsel for the appellant/claimant contended that the impugned judgment and order passed by the Commissioner for Employees Compensation dismissing the claim petition is erroneous and contrary to the material on record and is liable to be set-aside. He further contended that on the basis of the complaint made by the owner of the saw mill as per Ex.P.2 jurisdictional police registered a complaint as per Ex.P.1. The Commissioner ought to have taken into consideration the evidence of P.W.1 and material documents Exs.P.1 and P.2. He would further contended that the accident occurred on account of the negligence on the part of the driver of the lorry bearing registration No.KA-18/AA-1001 as he suddenly moved the vehicle as a result, the appellant/claimant who was standing behind the lorry was hit by the log which fell from the lorry and sustained injuries during the course of employment. Therefore, the Commissioner ought to have held that the accident occurred during the course of employment and should have awarded compensation. The same has not been considered by the Commissioner. He further contended that the appellant has spent Rs.37,882/- towards medical expenses and needs another Rs.30,000/- for further medical expenses. The said aspect has not been considered. Therefore, he sought to allow the appeal.
9. Per contra, Sri Ashok N Patil, learned counsel for the second respondent/insurer sought to justify the impugned judgment and order and contended that the first respondent under whom the claimant was working as cleaner, denied that the claima
