The court held that sufficient evidence supported the existence of an employer-employee relationship during the fatal accident, thus affirming the compensation awarded under the Workmen's Compensation Act.

JUDGMENT :

M.K.THAKKER, J.

1 The present First Appeal is filed by the appellant, who was the original opponent in Workmen’s Compensation Case (Fatal) No. 55 of 2003 filed before the learned Employees’ Compensation Commissioner, Ahmedabad, under the Workmen’s Compensation Act. By judgment and award dated 16.03.2020, the learned Commissioner awarded compensation of Rs. 2,30,255/- along with simple interest at the rate of 12% per annum from 16.08.2002 till its actual realization, and imposed a penalty at the rate of 35% of the awarded amount.

Factual Matrix:

2 It is the case of the present appellant that the accident occurred on 16.07.2002 when the deceased, Kantibhai, was travelling as a pillion rider in a rickshaw driven by one Haribhai Devsinhbhai Parmar. While they were passing through Odhav Road, after crossing the Soni’s Chawl cross-road, where Haribhai intended to collect money from an auto-parts shop, a Tata Sumo vehicle came from the side of the rickshaw in a rash and negligent manner and dashed against it. As a result, the rickshaw turned turtle and the deceased sustained grievous injuries, which ultimately resulted in his death, giving rise to the fatal claim before the learned Commissioner.

2.1 The heirs of the deceased filed the claim petition claiming an amount of Rs. 3,25,000/- along with interest at the rate of 12% per annum and costs of Rs. 10,000/-, alleging that the deceased Kantibhai was an employee engaged in the work of packaging and delivery of bales/parcels of the appellant company. It was further alleged that the accident dated 16.07.2002 occurred during the course of employment of the deceased with the appellant company, when he was returning after unloading the goods of the appellant company.

2.2 In order to substantiate the claim, reliance was placed by the opponent–claimants on documents such as the gate pass, delivery book, and Xerox copies of bills. The present appellant appeared before the learned Commissioner and filed a detailed reply contending that the deceased Kantibhai was never employed as a workman of the appellant company at any point of time. It was specifically denied that any employer–employee relationship existed between the appellant company and the deceased, and therefore, the claim petition was sought to be dismissed on the ground of non-maintainability.

2.3 It was further contended that none of the employees of the appellant company were engaged in the work of packaging or delivery of bales/parcels. The regular practice of the appellant company was to transport goods through hired tempos, and the tempo drivers were paid a lump-sum amount for transportation. It was asserted that on 16.07.2002, the tempo driven by Haribhai was hired independently, and Haribhai, for his own requirement and convenience, engaged the deceased Kantibhai. Therefore, the appellant company had no role whatsoever in the accident, and no liability could be fastened upon it under the Workmen’s Compensation Act. While adjudicating the claim petition, the learned Commissioner framed the following issues for determination and answered them accordingly:

(1). Whether the applicants proves that there was relationship of an employer and employee between the deceased and the opponent?

Answer is Affirmative.

(2). Whether the applicants proved that deceased died during the course of his employment?

Answer is Affirmative.

(3). What was the age of deceased at the time of accident?

Answer: The age of the deceased at the relevant time of accident was 38 years.

(4). What was the monthly wages of deceased at the time of accident?

Answer: The monthly wages of the deceased at the relevant time of accident was Rs.2,250/-.

(5). Whether the applicants proves that the opponent is liable for paying compensation?

Answer is Affirmative. The opponent is liable for paying, the applicants Rs.2,13,255/- as an amount of compensation.

(6). Who is liable amongst the opponents to pay the amount of compensation for the death of deceased?

Answer: The opponent is l