Kamal Ramesh Waghmare vs Proprietor, Meher Engineering & Fabricators

This Appeal challenges a Judgement dated 19^th November, 2004 passed by the Commissioner Under the Workman’s Compensation Act, III Labour Court, Pune whereby the Application of the Appellant was dismissed.

The facts in the case lie in a very narrow compass. Since 1988, Jyoti, the daughter of the Appellant, was in employment with the Respondent. It is the case of the Appellant that her job was to clean the premises of the Respondent, provide tea, distribute work to the workers and maintain accounts.

On the other hand, it is the case of the Respondent that Jyoti was working as a clerk.

On 12^th April, 1985, Jyoti sustained burn injuries, and on 16^th April, 1985 Jyoti passed away at the age of 20 years.

By a letter dated 9^th July, 1986, the Appellant demanded compensation from the Respondent. No response was received by the Respondent on the demand of compensation and, therefore, the Application WC No. 100 of 1986 was filed by the Appellant for compensation of Rs. 53,760/-, plus 50% penalty on the compensation, along with interest.

This Application WC No.100 of 1986 was dismissed for default. Thereafter, it was restored and transferred to the Commissioner and renumbered as WC No.59 of 1994.

By the said Judgement dated 19^th November, 2004, WC No. 59 of 1994 was dismissed on the ground that the deceased used to work in the workshop as a clerk and a clerk does not come within the definition of a Workman under Section 2(1)(n) of the Workman’s Compensation Act, 1923, and also on the ground that the Appellant had failed to prove that the deceased sustained burned injuries during the course of her employment.

This Judgement dated 19^th November, 2004 has been impugned in the present First Appeal.

The learned Senior Counsel for the Appellant submitted that Jyoti was a general worker and that the accident took place during the course of her employment and therefore she was entitled to compensation. The learned Senior Counsel for the Appellant submitted that, although in a notice dated 9^th July, 1986, the Appellant had described Jyoti as a clerk, in her Application filed before the Commissioner Jyoti has been described as a general worker. Further, the learned Senior Counsel for the Appellant submitted that, in the evidence of the mother of Jyoti, she had deposed that Jyoti used to clean the premises of the Respondent, provide tea, she used to distribute work to other workers and maintain accounts. The learned Senior Counsel for the Appellant submitted that this clearly showed that Jyoti was a general worker and not working as a clerk.

The learned Senior Counsel for the Appellant further submitted that, in the evidence of the Respondent, it has not produced any document to show that Jyoti was working as a clerk. She submitted that, therefore, this clearly showed that Jyoti was working as a general worker.

As far as the question as to whether Jyoti met with the accident during the course of the employment is concerned, the learned Senior Counsel for the Appellant once again submitted that the place of death of Jyoti has not been proved. She submitted that the Respondent had deposed that one Savkaar had informed him that Jyoti had suffered an accident at her residence but said Savkaar had not been examined.

Further, the learned Senior Counsel for the Appellant also submitted that Jyoti was admitted in Sasoon Hospital, Pune at 5.30 p.m. as per the evidence of the Respondent. Therefore, this clearly showed that she suffered from burn injuries during duty hours. Further, the learned Senior Counsel for the Appellant also submitted that the Appellant had not produced the Muster-cum-Wage Register which would have clearly shown as to whether Jyoti was at the factory or at her residence. The learned Senior Counsel for the Appellant submitted that, for all these reasons, the impugned Judgement is required to be set aside and compensation be granted to the Appellant.

On the other hand, the learned counsel for the Respondent has submitted that, in her Notice dated 9^th July, 1986, which was the first document addressed by the Appellant, she had mentioned that Jyoti was working as a clerk.

Further, the learned counsel for the Respondent also submitted that even the Application filed by the Appellant first mentioned that Jyoti was working as a clerk and then the same was canceled and replaced with the words ‘general worker’, which clearly showed that the Appellant stated that Jyoti was working as a general worker only as an after thought. The learned counsel for the Respondent further submitted that, although, in her evidence, the Appellant had stated that Jyoti used to clean premises, distribute work to other workers and maintain accounts, the same has been denied in her cross-examination by putting a suggestion to her in that regard.

Further, the learned counsel for the Respondent also submitted that the evidence of the Respondent showed that Jyoti has sustained injuries at her residence and the same was not challenged in cross-examination.

I have heard the learned counsel for the parties and perused the documents on record.

The first issue that arises is as to what was the nature of work of Jyoti i.e. whether she has working as a clerk or not. If Jyoti was working as a clerk then she would not come within the definition of a workman as defined in Section 2(1)(n) of the Workman’s Compensation Act, 1923, as it then stood.

In my view, the evidence on record clearly shows that Jyoti was working as a clerk. This is clear from the fact that, when the Notice dated 9^th July, 1986 was issued by the Appellant, for the first time claiming compensation, the Appellant had admitted that Jyoti was working as a clerk with the Respondent. There is no explanation in the evidence of the Appellant as to why, in the said Notice dated 9^th July, 1986, she had stated that Jyoti was working as a clerk.

Further, as rightly pointed out by the learned counsel for the Respondent, even the Application filed before the Commissioner shows that it was earlier stated that Jyoti was working as a clerk, and then, by way of an after thought, the same was cancelled and it was stated that she was working as a general worker.

The onus of proving that Jyoti fell within the definition of a workman was on the Appellant. In my view, the Appellant has failed to discharge the said onus. No evidence has been produced, either oral or documentary, by the Appellant to show that Jyoti was working as a general worker. In these circumstances, in my view, the Commissioner was right in coming to the conclusion that Jyoti was working as a clerk and therefore, did not fall within the definition of a Workman under Section 2(1)(n) of the Workman’s Compensation Act, 1923.

As far as the place where the accident took place is concerned, there is direct evidence of Hemant Bhosale, on behalf of the Respondent, that the place where Jyoti was found with burn injuries was her residence. There is also evidence of the said Bhosale that on the day of the accident he was informed by one Shri Savkaar that Jyoti had suffered injuries. On being so informed, he promptly left the office and went to the Mhaske Chawl where Jyoti had been given a residence and he found Jyoti lying on the ground. He also gave evidence that, when he reached there, the neighbours had already doused the flames, and, that, thereafter, with the help of others, he took Jyoti to the Sasoon Hospital. In his cross-examination, this evidence of Hemant Bhosale has not shaken. This evidence clearly shows that, when Jyoti met with the accident and suffered burn injuries, she was at her residence and not at work. Therefore, the injuries were not suffered by her during the course of her employment. For these reasons, the finding of the Commissioner, that Jyoti was not injured during the course of her employment, cannot be faulted.

For all the aforesaid reasons, the Appeal is dismissed.

There will be no order as to costs.