Kamla And Ors vs Allabux

Appellants have preferred this appeal under Section 30 of the Employees' Compensation Act, 1923 (for short, 'Act') to assail judgment dated 28th of June, 2017 passed by Employees Compensation Commissioner-cum-Labour Court, Jodhpur (for short, 'learned Commissioner'). The learned Commissioner by the impugned judgment dismissed claim of appellants for compensation under Section 22 of the Act.

The facts, in brief, are that appellants laid a claim under Section 22 of the Act before learned Commissioner, inter alia, on the ground that deceased Ramchandra was in employment of respondent as driver of Tractor No.RJ-16-R-8393 and earning salary @ Rs.2,500/- per mensem. It is also pleaded that on 24th of March, 2004 he carried bricks manufactured by the employer and after unloading the same at Khanda Dewal village, while returning back to Bhinmal, the tractor met with an accident. Narrating the gory episode, it is pleaded in claim petition that the accident was with the train when the tractor was passing through unmanned railway crossing with emphasis that on account of the accident, Ramchandar died on the spot. The age of deceased was mentioned as 45 years and the total amount of compensation was quantified to the tune of Rs.7,55,000/-. Besides compensation, 50% amount of penalty and interest was also claimed. The claim petition is contested and, on behalf of respondent, factuam of employment was denied. It is further averred in the reply that in absence of employment question of occurrence of accident during the course of and out of employment does not arise. The learned Commissioner on the basis of pleadings, settled two issues for determination. On behalf of the appellants, nine documents were exhibited, whereas on behalf of respondent, three documents were exhibited. In support of the claim, first appellant herself appeared in the witness box, whereas respondent appeared besides examining two other witnesses.

Learned Commissioner, after recording evidence heard final arguments and relying on the evidence, Issue No.1 is decided against the appellants. While deciding Issue No.1, learned Commissioner has examined oral as well as documentary evidence and, in absence of any material proof about the factum of employment, decided the same against the appellants. It is also observed by the learned Commissioner that appellants have set out a case that deceased was driver with the respondent but no driving licence is produced, nor any proof about the monthly wages drawn by him is available on record.

It is also observed by the learned Commissioner that D.W. 3 Sattar Khan was known to the deceased has also shown his status as a worker involved in transportation of lime etc. Likewise, Issue No.2 is also decided by the learned Commissioner against the appellants.

I have heard learned counsel for the appellants, perused the impugned judgment and also examined entire record of the case.

Upon examining record of the case in entirety, in my opinion, the learned trial Court, while deciding Issue No.1 has not committed any manifest error in appreciation of evidence.

In a case under the Act burden lies on the claimants to prove factum of employment and suffering of injury or death during the course of and out of employment. As the initial burden, which is casted on the appellants was not discharged by them and they have not been able to prove the employment itself. Therefore, the finding recorded by the learned Commissioner on the basis of appreciation of evidence cannot be faulted.

It is a trite law that appeal under Section 30 of the Act can only be entertained when substantial question of law is involved. In the instant case, the finding of fact recorded by the learned Commissioner is based on sound appreciation of evidence, and therefore, no substantial question of law is forthcoming. The proposed questions are also not satisfying the requirement of substantial questions of law.

In view thereof, no case of interference is made out. Consequently, the appeal fails and same is, hereby, rejected summarily.