Khimabhai H. Maru vs Santaben Naranbhai and Others

Honourable Mr. Justice K.S. Jhaveri

By way of this writ petition, the petitioner has challenged the order dated 28.06.1990 passed by the Civil Judge (S.D.) & Ex-officio Commissioner for Workmen''s Compensation, Amreli in Workman Compensation Case No.14 of 1987.

The facts of the case are that the respondent Nos.1 to 4 preferred Workman Compensation Case No.14 of 1987 seeking compensation for the death of respondent No.1''s husband deceased Dayabhai Bhurabhai. It is the case of respondent Nos.1 to 4 that deceased Dayabhai Bhurabhai was called as a labourer by the petitioner in his field and while the deceased was working, he was murdered. It is the further case of the respondent Nos.1 to 4 that there was relation of employee and employer and hence, the respondent Nos.1 to 4 are entitled for compensation of Rs.79,874/-.

The petitioner filed his objections at Exh.9 and denied that the respondents are entitled to recover compensation from the petitioner.

The learned Commissioner for Workmen''s Compensation, Amreli vide his impugned order dated 28.06.1990 allowed Workman Compensation Case No.14 of 1987 and directed the petitioner to pay Rs.62,394/-by way of compensation to respondent Nos.1 to 4 along with 6% simple interest p.a. from the date of application till its realization. The learned Commissioner also held that respondent Nos.1 to 4 are also entitled to recover 50% penalty of compensation amount i.e. Rs.31,197/-from the petitioner.

It is this order of the Commissioner which is under challenge in the present petition.

We have heard Mr. R. N. Shah, learned counsel appearing for the petitioner.

In our view, the learned Commissioner while considering the case of the respondent Nos.1 to 4 has specifically observed in paragraph 11 as under :

I am unable to agree with the submission made by Mr. J.G. Raval and I am in complete agreement with the submission made by Mr. G. A. Parikh. It is true that there is no written contract between deceased Daya Bhura and opponent but it is a matter of common experience that in the village, there is no custom that if any person is called as a labourer, then the contract is reduced in writing. Hence, the argument advanced by Mr. J. G. Raval that there is no written contract hence there is no relation of master and servant between Dayabhai Bhurabhai and opponent cannot be accepted. The applicant Shantaben in her deposition at Exh.14 has clearly stated that opponent has called her husband Dayabhai Bhurabhai for labour work and agreed to pay Rs.20/-per day as labour charges and three times meal and two time tea and the deceased Dayabhai Bhurabhai went to samadhiyala in the field of opponent. The say of the applicant is supported by Bhurabhai Savjibhai who was residing with deceased Dayabhai Bhurabhai and who is father of deceased Dayabhai Bhurabhai. Moreover, opponent has not alleged any enmity in the reply or in the evidence between the applicant and himself. On the contrary, the opponent and his witness who is brother of opponent, namely, Klabhai Harsurbhai has admitted in his cross-examination that there is no enmity between the families of opponent and applicant. Moreover, there is no reason for the applicant to claim compensation falsely from opponent. Moreover, opponent has denied that he has called deceased Dayabhai Bhurabhai to his field for agricultural work and he has also denied that he has not showed Maize at the relevant time and he has not sold the Maize to Savarkundla Gau-shala. The opponent''s evidence that he has not maize to Savarkundla Gaushala falls to ground by Exh.24. In Exh.24, there is thumb impression of opponent Khimabhai Harsurbhai. Moreover, the Rojmel produced at Exh.23 also shows that opponent has received Rs.1086/-for the price of Maize. The Savarkundla Gaushala is a Trust hence, witness from Savarkundla Gaushala has no reason to depose falsely. The application is filed on 01.07.1987 and the incident has taken place in April 1987. The document at Exh.23 and 24 cannot be said concocted to help the applicant. A person may tell lie but document does not. The evidence of opponent that he has not showed maize and he has not sold the maize to Savarkundla Gaushala is not believable at all in view of the document at Exh.23 and 24 which shows the opponent Khimabhai Harsur has sold Maize to Savarkundla Gaushalal. Hence, the say of the applicant the deceased Dayabhai Bhurabhai was called by opponent as a labourer is believable and the evidence of opponent and his brother that deceased Dayabhai Bhurabhai was not called as a labourer is not believable. Non-examination of deceased Daya Bhura''s elder brother is not so material and hence, it is proved by applicant that deceased Dayabhai Bhurabhai was wrokman of Khimabhai Harsurbhai and the incident has happened out of and in the course of employment with opponent. Mr. G. A. Parikh has relied upon 1987 (2) ACJ 728 in the case of M. P. State Road Trans. v. Narendra Singh Gaurta in which it was held that workman while going to get his salary met with an incident. In that case, the accident arose in the course of employment and workman be deemed to be on duty.

We are in complete agreement with the view taken by the learned Commissioner. In that view of the mater, no interference is called for in the impugned judgment and order. The present petition is devoid of any merits and deserves to be dismissed. Accordingly, the present petition stands dismissed.