New India Assurance Company Ltd. v. Sunil P & Kalpetta Autorikshaw Drivers Co-Operative Society Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935 MFA.No. 201 of 2011 ( ) ------------------------ AGAINST THE ORDER/JUDGMENT IN WCC 41/2004 of W.C.C., KANNUR DATED 1012-2010 APPELLANT(S)/RESPONDENT NO. 2 : ------------- THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, MAIN ROAD, KALPETTA REPRESENTED BY ITS MANAGER. BY ADVS.SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH RESPONDENT(S)/PETITIONER AND RESPONDENT NO.1: ---------------------------- 1. SUNIL.P, S/O.VASU, PUZHAYIL HOUSE, P.O.KOTTANAD KALLUMALA, MEPPADI. 2. THE SECRETARY, KALPETTA AUTORIKSHAW DRIVERS CO-OPERATIVE SOCIETY LTD., KALPETTA POST, WAYANAD. R1 BY ADV. SMT.CELINE JOSEPH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2401-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **K. M. JOSEPH & A.MUHAMED MUSTAQUE, JJ ----------------------------------------------------** M.F.A.(WCC).No. 201 OF 2011 **----------------------------------------------------** Dated this the 24[th] day of January 2014 ## J U D G M E N T ## K.M. Joseph, J The appellant is the second opposite party, the insurer, in proceedings under Section 22 of the Employees Compensation Act, 1923. The Commissioner has awarded sum of Rs.39,932/- with 12 % interest as compensation to the applicant. 2. The case of the applicant before the Commissioner was that he was employed by the first opposite party, the Cooperative Society Limited, as a driver and while driving an autorickshaw, on account of loosing control over the vehicle, it was involved in an accident and he sustained injuries. 3. The first opposite party, the alleged employer, filed a statement disputing the employer-employee relationship. The appellant, the second opposite party, also disputed the employer-employee relationship. The evidence before the Commissioner consisted of AW1-oral evidence of the applicant, Ext.A1, which is a copy of the Accident Register Cum Wound Certificate, Ext.A2 driving licence of the M.F.A. No. 201/2011 2 applicant, Ext.A3 copy of Policy Certificate, Ext.A4 series of Medical Bills and Ext.X-1 Disability Certificate from the Medical Board. There is no oral or other evidence either for the appellant or for the first opposite party. The Commissioner took note of the oral evidence of the applicant, which is given on the following lines; “I was employed under the first opposite party. I was working under the first opposite party as a driver. On 19/4/2004 at 9.30 in the night when I took the vehicle to go home, I lost control and vehicle over turned. I suffered injuries to my hand. There was fracture of bone. I was taken to the hospital at Kattappana and till 23/4/2004 I was under treatment there. “ 4. The Commissioner stated that the appellant has not able to disprove the evidence given by the applicant by cross examination. On the said basis, the Commissioner awarded an amount of Rs.39,932/- with interest as compensation to the applicant. 5. We heard the learned counsel for the appellant and the learned counsel for the applicant. Though notice was M.F.A. No. 201/2011 3 served, there is no appearance for the first opposite party. 6. The learned counsel for the appellant would point out that it is a case where the applicant was not an employee of the first opposite party and that there is no documentary evidence to establish such employment. The applicant had taken loan from the first opposite party. The autorickshaw was purchased under the Hire Purchase Agreement. He drew our attention to Sections 2(30) of the Motor Vehicles Act 1988, which reads as follows; **2(30). “Owner”** means person in whose name a motor vehicle stands registered, and where such a person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;” The counsel would submit that though the vehicle was registered in the name of the first opposite party, in view of the definition, it is clear that the applicant, who was in possession as a hirer under the hire purchase agreement, must M.F.A. No. 201/2011 4 be treated as the owner and that there is no employeeemployer relationship. In this connection, he drew our attention to the statement in deposition of the applicant in cross-examination. In the cross examination, the applicant would state as follows; “ I have taken a loan from the first respondent opposite party. This vehicle is that vehicle. I did not remember when the loan was repaid. I have not changed the registration in my name. There are no loan arrears. The said vehicle is now plying in the town. After the accident the vehicle was returned. The amounts, which were received from plying the vehicle, was remitted towards the loan”. The complaint of the appellant is that there is no consideration of the said evidence by the Commissioner at all. 7. Per contra, the learned counsel for the applicant submits that there is no evidence adduced by the first opposite party to prove its contention that the applicant was not employed by it. The same is the case of the appellant also, as there is no evidence adduced by it also. As far as the admission in cross examination is concerned, the learned M.F.A. No. 201/2011 5 counsel would point out that admissions in evidence can always be explained. In this context, the counsel drew our attention to the following statements of the applicant in the re- examination; “There are so many autorickshaws with the Society. The amounts which I got from the plying of the autorickashaw was being remitted to the Society. I am not seeking the account of the Society. I do not know how they have appropriated the amount which I have remitted. “ 8. This is an appeal under Section 30 of the Workmen's Compensation Act. The finding of fact, unless it is perverse, cannot be interfered with under Section 30 of the Act. If a vital piece of evidence is ignored, it can gave rise to a substantial question of law. In this case, we have noticed that there is only the self serving statement of the applicant in chief examination, that the applicant is an employee of the first opposite party. It has been accepted as evidence for establishing the employer-employee relationship. The Commissioner proceeds to find that the appellant has not been able to demolish the case in cross examination. We have M.F.A. No. 201/2011 6 noticed the statements in the cross examination. We are at a loss to say at least as to how the Commissioner could have concluded that the appellant could not demolish the case set up by the applicant in chief examination. In proceedings under the Workmen's Compensation Act, the burden to prove the employer -employee relationship is on the worker, particularly in a case where the employer-employee relationship is disputed. It is not a case where the employeremployee relationship is disputed only by the appellant, the insurer. It is a case where the alleged employer itself has disputed the case of employer-employee relationship. In such circumstances, the Commissioner should have found that the burden is on the employee to prove that he is an employee of the first opposite party. In this context, we may refer to a Bench decision of this court reported in **Oriental Insurance Co. Ltd. v. Vasudevan Nair (2001 (1) KLT 941)** . There also the contention was taken that the claimant was a driver of the vehicle. No doubt in that case, in the First Information statement of the applicant, he has deposed that he owned the autoricksaw when the accident happened. The court inter alia took the view that, when the member got the auto M.F.A. No. 201/2011 7 rickshaw on the basis of Ext.X1 hire purchase agreement and he himself was driving the vehicle, there was no question of vicarious liability or employer's liability under the Workmen's Compensation Act . 9. We are of the view that it is not clear whether it is under a hire purchase agreement that the loan is obtained. In Oriental Insurance Co.Ltd.'s case(cited supra) the Division Bench was considering a case where the applicant had taken the vehicle under the hire purchase agreement. In that case, the hire purchase agreement was produced and marked as Ext.X1. But, in this case, there is no evidence regarding the actual hire purchase agreement. The appellant did not take steps to cause production of the hire purchase agreement. According to the learned counsel for the appellant, in view of the fact that the registration of the vehicle is in the name of the first opposite party, the vehicle was being held under a hire purchase agreement. The reliance placed by the appellant on Section 2(30) of the Act can be successfully premised only if there is either a hire purchase agreement or hypothecation. Otherwise, it may not be possible to refer to Section 2(30) of the Act to contend that the person in M.F.A. No. 201/2011 8 possession of the vehicle under such agreement would be the owner. In the circumstances of the case, the matter must be remitted back after setting aside the impugned order with an opportunity to the parties to adduce evidence. The impugned order cannot be sustained and the same is set aside. We remit the case back to the Commissioner. The matter will be reconsidered by the Commissioner, with an opportunity to the parties to adduce further evidence. The appeal is allowed as above. Sd/- **K. M. JOSEPH, JUDGE .** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE.** Dpk. /True copy/ PS to Judge.