C.M.A.No.831 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.03.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI

C.M.A.No.831 of 2016

and

C.M.P.No.4306 of 2020

Bashira

... Appellant

Vs.

1.N.Ashraff Hussain

2.M/S.New India Assurance Co.ltd,

No.35, Morre Street,

Parrys, Chennai-01.

... Respondents

PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of

Workmen's Compensation Act, 1923, against the decree and judgment dated

15.09.2015 made in W.C.No.151 of 2012 on the file of Commissioner for

Workmen's Compensation, (Deputy Commissioner of Labour-II), Chennai.

For Appellant

: Mr.K.Varadhakamaraj

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C.M.A.No.831 of 2016

For Respondent1

: Mr. B.Jawahar

For Respondent 2 : No appearance

JUDGMENT

The appellant herein/applicant has filed an application for

compensation under Section 10 of Workmen's Compensation Act, 1923 in

WC.No.151 of 2012 before the Deputy Commissioner of Labour-II, Chennai

for the death of her son G.Ansari, who was employed under the

1^strespondent, Mr.Ashraff Hussain.

2. It is the case of the applicant before the Deputy Commissioner of

Labour- II that the deceased was driving the car from Vandhavasi to Chennai

and when the car was proceeding near Uthiramerur, the passengers, who

travelled in the car stopped the car and murdered the driver, the said Ansari

and fled away with the car. Contending that the deceased Ansari was

employed under the 1^st respondent and had died, it was a clear case of an

accident arising in the course of employment and therefore, the claimant,

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C.M.A.No.831 of 2016

being the legal representative and mother of the deceased G.Ansari prayed

for lumpsum compensation from the 1^strespondent/ employer and the 2^nd

respondent/Insurance company.

3. The Insurance company as 2^nd respondent before the Deputy

Commissioner of Labour -II filed a counter denying the claims made by the

mother of the deceased, including the employer-employee relationship

between the 1^st respondent and the deceased. It was also contended by the

Insurance company that the Registration Certificate and the Insurance Policy

in respect of the vehicle on the date of the incident was in the name of one

D.Flora and in the absence of nexus between D.Flora and the deceased, the

Insurance Company cannot be held responsible for paying any compensation

to the deceased. The Insurance Company denied liability to compensate the

mother of the deceased and sought for dismissal of the claim before the

Deputy Commissioner of Labour-II, Chennai, thereby confirming the order

under challenge.

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C.M.A.No.831 of 2016

4. The 1^st respondent/employer also filed a separate counter before the

Deputy Commissioner of Labour-II, Chennai and admitted that the deceased

Ansari was working under him. However, the 1^st respondent sought for

dismissal of the compensation claim in view of the delay of 6 years in

approaching the Court and also for not proving her entitlement to receive the

compensation.

5. The Deputy Commissioner of Labour-II, in W.C.No.151 of 2012 in

and by order dated 15.09.2015 dismissed the claim petition holding that the

claimant had not established that the incident occurred during the course of

the employment.

6. A Civil Miscellaneous Petition in CMP.No.4306 of 2020 has been

filed seeking production of additional evidence in the above appeal. The

documents proposed to be marked are the copy of the Criminal Court

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C.M.A.No.831 of 2016

judgment of Sessions Court, Tiruvannamalai and the Criminal Appeal order

of this Court, to throw light on the relationship between the deceased and the

1^st respondent, especially in the context of employer-employee.

7. This Court has perused the affidavit filed in support of this petition

to adduce additional evidence. The documen