ORAL JUDGMENT

The present appellant has approached this Court by preferring this appeal under Section 30 of the Workmen Compensation Act 1923 against the judgment and award passed by the learned Labour Judge Nadiad and Commissioner under the Workmen Compensation Act (In short “WC Act”) in Workmen Compensation (Fatal) Case No. 37 of 1990 dated

12th January 2005.

Short facts of the case are as under:

The respondent no.1-original applicant preferred an application before the trial Court seeking compensation of Rs. 78,824/- on account of sad demise of her husband namely Haribahadur Rambahadur Gurkha, who was serving as a Security Officer (Watchman) under the respondent no.2 on 28th December 1989. As per the submissions made in the petition preferred by the original applicant, the duty of her husband was starting from 8.00 o’clock in the morning to 8.00 p.m. That, his salary was Rs. 1,000/-per month. That, on 28th December 1989, after completing his service, her husband was returning to home, he met with an accident and succumbed to death. That, her husband was expired during the course of employment. That, he did not reach to home. The respondents, as per the averments, were liable to pay compensation to the applicant. That, the age of her husband at the time of accident was 40 years. That, notice was issued through registered post A.D. to the respondents on 5th November 1990 to pay compensation within a period of 15 days, however, no amount was deposited by the respondents as well as 50% amount of penalty. As no amount was deposited by the respondents, the applicant was entitled to claim compensation alongwith 50% penalty of the compensated amount as well as interest @ 12%. After receiving notice the opponent no.2 given frivolous reply and the opponent no.1 did not give any reply.

After receiving notice from the court below, the respondent no.1 filed its written statement denying the contentions raised by the applicant stating that the husband of the applicant was not serving with the respondent no.2, and therefore, they were not liable to pay any compensation. That, on contract basis, the deceased was serving as guard from December 1989. That, after getting consent of the deceased, there was no direct nexus between the deceased and the respondent no.1. There was no relationship as an employer and the servant with the husband of the applicant. That, the contract was executed and therefore, there was no liability of the respondent no.1. That, the husband of the applicant was died in the motor vehicular accident and not during the course of the employment, and therefore, no liability can be fixed upon the opponents. It was further denied that deceased was expired during the course of employment. That, the respondent no.1 was not paying any salary to the deceased during his service and therefore, the respondent no.1 was not needed to reply the notice and hence it was not replied. Ultimately, it was requested to dismiss the application preferred by the applicant.

Opponent no.2 filed its written statement vide Ex. 9 denying the contentions raised by the applicant. It was submitted that the husband of the applicant was serving under the respondent no.1 and he was no direct or indirect relationship with him. It was further contended that there was no relation between them as master and servant. That, deceased was expired in the motor vehicle accident and not during the course of the employment. That, the deceased was never serving under the respondent no.2 nor any salary was paid to him by the respondent no.2. That, the applicant was not entitled for any amount of compensation as prayed for and hence, requested to dismiss the application.

The learned trial Judge, after recording the evidence as well as documentary evidence, was pleased to pass an order holding the liability of the respondents jointly and severally to pay compensation of Rs. 47,884/- from the date of application ie., 29.12.1990 with simple interest @ 6% , 50% penalty of the