Mohani Devi (Smt.) and Others vs Premkumar and Another

G.R. Majithia, J.—This judgment will dispose of F.A.O.Nos. 1150 and 1149 of 1989 since common questions of law and fact arise for determination. These appeals are directed against the award of the Commissioner under the Workmen''s Compensation Act, 1923 (for short, ''the Act'') disallowing the claim applications of the legal representatives of Man! Ram, deceased, alleged to be the driver of the four wheeler bearing registration No. HYN-3304 and of Bhalla Ram claiming to be the cleaner of the said vehicle for the injuries sustained by him in the accident on June 19, 1986.

The facts :--

Mani Ram and Bhalla Ram were the driver and cleaner respectively of the four wheeler bearing Registration No. HYN-3304, which was owned by Prem Kumar, respondent No. 1 and insured with the United India Insurance Company Limited, Sirsa Branch (respondent No. 2). Mani Ram was employed at monthly salary of Rs. 750/- and Bhalla Ram at Rs. 500/-. On June 19, 1986, the deceased and Bhalla Ram were going on the aforesaid four wheeler from Goriwala to Panniwala Mota in the course of employment under respondent No. 1. The four wheeler met with an accident near village Panniwala Mota on account of sudden failure of steering of the vehicle. Mani Ram died on the spot and Bhalla Ram sustained injuries. Applications for compensation filed by the heirs of deceased Mani Ram and Bhalla Ram injured were registered as no. 20 of 1986 and 21 of 1986 respectively.

Respondent No. 1 in his written statement admitted that the vehicle bearing Registration No. HYN-3304 was owned by him and that the deceased and Bhalla Ram were in his employment. He also admitted that Mani Ram deceased died in the course of employment and Bhalla Ram received the injuries likewise. He also admitted that the applicants in Claim Application No. 20 of 1986 were the heirs of Mani Ram deceased. Applicant No. 1 is the widow and applicants Nos. 2 and 3 are mother and father respectively of the deceased.

Respondent No. 2 denied the allegations made in both the claim applications but however, admitted that the vehicle involved in the accident was insured with it. This admission was only made in its reply to the claim application No. 20 of 1986.

From the pleadings of the parties, the following issues were framed:--

Whether the relationship of employer and employee existed between the deceased/ applicant and respondent No. 1 at the time of accident.

Whether the accident arose out of and during the course of employment of the deceased with respondent No. 1?

Entitlement and relief?

Liability to pay compensation ?

The Commissioner under the Act decided issues Nos. 1 and 2 in favour of the respondents and against the applicants. He held that the legal representatives of Mani Ram deceased failed to establish that the deceased and Bhalla Ram injured were employees of respondent No. 1. Since the relationship of master and servant was not established between Mani Ram deceased, Bhalla Ram and respondent No. 1, the legal representatives of the deceased and Bhalla Ram were not entitled to any compensation.

The entire approach of the Commissioner under the Act is perverse. He does not know the elementary principle of law that a fact which is admitted in the written statement by the contesting party need not be proved. In the present case, as observed in the earlier part of the judgment, respondent No. 1 has admitted that the deceased Mani Ram and Bhalla Ram injured were employed as driver and cleaner respectively on the four wheeler bearing Registration No. HYN-3304 owned by him. He also admitted that the claimants in Claim Application No. 20 of 1986 were the heirs, i.e., wife and parents respectively, of the deceased. The plea that the deceased and Bhalla Ram were in the employment of respondent No. 1 is also proved by the statement of A. W. 1. Smt. Mohani Devi widow of the deceased in Claim Application No. 20 of 1986 and by the statement of A.W.1. Bhalla Ram injured in Claim Application No. 21 of 1986. They have categorically stated that the deceased and Bhalla Ram were the driver and cleaner respectively of the four wheeler and were in the employment of respondent No. 1 at the time of accident and that respondent No. I was the owner of the vehicle. There is absolutely no rebuttal to this evidence. The plea that Mani Ram deceased and Bhalla Ram were in the employment of respondent No. 1 was not controverted by the contesting party, namely, respondent No. 1. To the contrary, he admitted that the deceased and Bhalla Ram were his employees and that the accident took place in the course of employment. On the basis of this evidence and admissions, it was not open to the Commissioner under the Act to come to the conclusion that the heirs of Mani Ram deceased and Bhalla Ram failed to establish that Mani Ram and Bhalla Ram were the employees of respondent No. 1 and that the accident took place in the course of employment. On the evidence on record, the findings of the Commissioner under issues Nos. 1 and 2 cannot be sustained and are set aside.

Smt. Mohani Devi, widow of Mani Ram deceased, appeared as A.W. 1 in Claim Application No. 20 of 1986 and stated that the deceased was drawing salary of Rs. 750/- in addition to T.A./ D.A. to the tune of Rs. 150/- totalling Rs. 900/-per month. Section 4 of the Act says that the amount equal to 40 per cent of the monthly wages of the deceased workman multiplied by the relevant factor is payable as compensation to the heirs of the deceased on his death. The deceased was admittedly 22 years of age on the date of the accident. 40% of the wages last drawn by the deceased comes to Rs. 360/- and when multiplied by the relevant factor, i.e. 221.37, the compensation amount comes to Rs. 76,693/-.

Bhalla Ram was injured in the accident. He was 20 years of age on the date of accident. He was drawing a salary of Rs. 600/- per month inclusive of T.A. and D.A. He had suffered only 10 per cent disability in the accident as established by the medical report, Ex. P-3. The monthly loss in his salary will be Rs. 60/-. Applying a multiplier of 224 as provided in Schedule IV appended to the Act, the total compensation payable to him comes to Rs. 13,440/-

Respondent Nos. 1 and 2 are jointly and severally liable to pay the compensation amount as assessed supra. The compensation amount will be payable with interest at the rate of six per cent per annum from the date of filing of the claim applications till realisation.

The appeals are accordingly accepted with costs and the impugned award of the Commissioner under the Act dated June 20, 1989 is set aside. Counsel''s fee is assessed at Rs. 1,000/-in each case.