Delay in lodging FIR and non-examination of the employer do not disprove the claimant's entitlement to compensation under the Employees Compensation Act, 1923.

JUDGMENT

(Prayer: Appeal filed under Section 30 on the Employees Compensation Act, 1923 to set aside the decree and judgment dated 09.12.2014, made in W.C.No.147 of 2011 on the file of the Court of Commissioner for Workmen''s Compensation-II (Deputy Commissioner of Labour-II) Madras.)

1. This Civil Miscellaneous Appeal is directed against the judgment and decree dated 09.12.2014 in W.C.No.147 of 2011 on the file of the Court of Commissioner for Workmen''s Compensation-II (Deputy Commissioner of Labour-II ), Chennai, U/s. 30 of the Employees Compensation Act, 1923

2. The case of the claimant, one, Mr.Krishnamurthy before the Deputy Commissioner of Labour was that he was employed as a driver under the 1st respondent owner of the lorry bearing Registration No.TN-20-AJ-1417, drawing a monthly salary of Rs.7500/-, apart from Rs.300/- paid on a day basis.

3. It is the clear case of the claimant that on 23.07.2009 at 06.00 p.m while climbing into the lorry near the crusher unit at Thirumalai granite quarry in order to drive the vehicle to get a load of black metal, the claimant slipped and fell down into a ditch which was filled with granite stone and sustained a fracture on his left thigh besides loss of fingers in the left hand. Claimant stated that the injuries were suffered “ in the course of employment” under the 1st respondent, the owner of the lorry and that the claimant was rushed to Puthur for treatment and subsequently since there was no recovery, he was shifted to a private hospital and later to Government Stanley Medical College and Hospital, where he underwent a surgery on 19.08.2009. It is his further case that besides the duration of stay in the hospital from 31.07.2009 to 31.08.2009, he was again admitted to Government Stanley Medical College and Hospital on 29.12.2009 and was thereafter discharged on 01.01.2010 after being treated for knee stiffness. It is the further case of the claimant that because of the loss of fingers and fracture of left thigh, he was not able to even stand, walk, squat or hold articles in the hand. In short, he claimed that the disability deprived him of employment as a driver. It is his case that FIR was registered before the S6- Shankar Nagar Police Station in Crime No.549 of 2009. The claim was made against the respondents viz., the 1st respondent, the owner of the lorry and the 2nd respondent, insurer with whom admittedly the lorry was insured during the relevant period of time viz., on 23.07.2009. The claimant ultimately sought for an award of Rs.10,00,000/- for the injuries sustained by him in the accident.

4. The owner of the vehicle/employer of the claimant chose to remain ex-parte. Even before this Court, the 2nd respondent has not chosen to appear. However, the appellant/2nd respondent insurance company denied all the claims made in Workmen''s compensation case in toto and called upon the claimant to prove his employment under the 2nd respondent as on the date of accident and also the injuries sustained by him during the course of such employment. Curiously, the insurance company took a plea that there was no employer-employee relationship between the claimant and owner of the lorry and that the claimant was colluding with the owner of the lorry and hence sought for the dismissal of the claim.

5. Before the Court of Commissioner for Workmen''s Compensation-II (Deputy Commissioner of Labour-II) in W.C.No.147 of 2011, the claimant examined himself as P.W.1 and one Doctor, Sai Chandran was examined as P.W.2 and Exs.P.1 to P.9 were marked. On the side of the respondents, one Mr.Vinothkumar was marked as R.W.1 and no documents were filed on the side of the respondents.

6. The Lower Court on consideration of the oral and documentary evidence placed before it, passed an award for Rs.1,93,594/- and fastened liability on the appellant/insurance company.

7. Aggrieved by the said judgment and decree, the insurer viz., the appellant has filed the present Civil Miscellaneous Appeal, mainly contending th