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Judgment
A. Subbulakshmy, J.—The appeal is filed as against the order passed by the Commissioner for Workmen''s Compensation, Madras, in
W.C. No. 157 of 1988. The appellant as applicant has filed the claim petition u/s 10(1) of the Workmen''s Compensation Act, against the first
respondent-management and the second respondent, the insurance company, claiming compensation.
The appellant was the driver under the first respondent. According to the claim petition filed by the appellant on February 28, 1988 while he
was taking long ride of the first respondent car TCZ 4300 for testing and finding out its suitability, after repair he met with an accident and received
personal injury on February 28, 1988 at about 2.15 P.M. due to the car dashing against the trees on the road near Puduchatram, on Thirumalisai
Thiruvellore Road and sustained grievous and multiple injuries leading to partial and permanent disability which arose out of and in the course of
employment and that he worked continuously under the first respondent from July 1, 1987 and that he was getting a monthly salary of Rs. 900 and
the appellant further contends that he was an inpatient in Government General Hospital, Madras, from February 28, 1988 to May 4, 1988 and he
was aged 40 years and he also sustained partial and permanent disability to the extent of 40 per cent.
The first respondent, management resisted the claim of the appellant contending that on February 28, 1988 when the vehicle was involved in the
accident, the accident was not out of and in the course of the employment of the appellant with the first respondent and that it was stated that the
appellant also did not take the vehicle for trial or testing on February 28, 1988 and the petition has to be dismissed.
On appreciation of oral as well as documentary evidence the Commissioner of Labour has dismissed the claim of the appellant. Aggrieved
against the order the appellant has preferred this appeal.
Learned counsel for the appellant submits that the accident had happened during the course of his employment and he took the vehicle for
testing and repairing and at that time the accident had occurred and so the first respondent-management is liable to pay the compensation. He
further submits that the appellant was working under the first respondent continuously. It is an admitted fact that the appellant was working as
driver under the first respondent but the first respondent vehemently contends that the accident was not in the course of the employment.
Learned counsel for the first respondent submits that the accident had not happened during the course of employment and the appellant took the
vehicle on his own accord without the knowledge of the first respondent and while he was driving, the accident had happened and since it is not in
the course of employment, the management is in no way liable to pay compensation. It is seen from the records that after 10 months and 23 days
the appellant filed ; an application to amend the claim petition stating that when the vehicle was taken to Tirupathy to deliver company goods to its
agent and that on his return he met with an accident and sustained bodily injury. The said petition was dismissed by the Commissioner of Labour.
In the claim petition, the case of the appellant is that while he took the vehicle for testing after repair, the accident had happened and he
sustained injuries but in his evidence before the Commissioner of Labour, the appellant has stated that his boss asked him to go to Tirupathy to
take the chemicals and he also with his family members with the permission of the first respondent went to Tirupathy, Shanti Nagar, and after
worshipping in the temple at Tirupathy and while he was returning near Thiruvallur near Vallavellur he saw a lorry coming in the opposite direction
and he drove his vehicle slowly and when he applied brake, the vehicle pulled to the left side and dashed against the tree and thus the accident had
happened, and he sustained injuries.
The original stand of the appellant in the claim petition is entirely different from the oral evidence of the appellant. In the claim petition, he has
stated that while taking the vehicle for testing, the accident had happened. It transpires from his oral evidence that while he went to Upper India
Chemicals, Tirupathy, and while he was returning from Tirupathy near Vallavellur, the accident had happened. The case of the appellant is
inconsistent, one version in the claim petition and different version in his evidence. There is clear contradiction with regard to the place of the
accident.
Learned counsel for the first respondent submits that without the knowledge of the first respondent the appellant took the vehicle and he
sustained injuries in the accident and it is not in the course of employment. The Commissioner has observed in his order that the appellant did not
say the door number of Upper India Chemicals. Besides, the demur, the reluctancy and the hesitancy exhibited in his replies before him when he
gave evidence have forced him to conclude that the applicant had suppressed the fact and he does not speak reality.
The appellant has to prove that the accident had happened during the course of his employment. The appellant has not established his case. He
has given one version in the claim petition and a different version in his evidence. In all aspects, the appellant did not approach the Commissioner of
Labour with clean hands. The inconsistent version of the appellant in the claim petition and in his evidence belies (sic) the case of the appellant. The
oral evidence of the appellant clearly shows that the appellant did not take the vehicle for testing after repair and he unauthorisedly took the vehicle
to Tirupathy, without the knowledge of the first respondent and while he was returning from Tirupathy, the accident had happened. So the accident
is not under any circumstances, in the course of the employment. If the accident had happened during the course of employment, the first
respondent-management will be held liable for payment of compensation for the injuries sustained by the appellant. The Commissioner of Labour
also found that there are materials to confirm that the applicant might have taken the vehicle from the garage after repair without the knowledge of
the first respondent management and took his family members to Tirupathy and not even a symptom premate (sic) or atleast fundamental
connection between the accident and employment is present in this claim and there is no balance of probabilities to decide in support of the
petitioner''s claim and the case of the appellant leads to the conclusion that the appellant at the time of accident was not acting within the scope of
his employment.
On a perusal of the entire materials, available in this case, I have no hesitation to hold that the accident was not in the course of employment
and the appellant took the vehicle on his own accord without the knowledge of the management. Since the accident was not in the course of
employment, the first respondent is not liable to pay any compensation to the appellant. The Commissioner of Labour has considered all these
aspects carefully and dismissed the claim petition. I see no grounds to interfere with the order passed by the Commissioner. Therefore, the civil
miscellaneous appeal is dismissed. No costs.