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Judgment
D. Hari Paranthaman, J.
The appeal was already dismissed as against the 1st respondent/claimant on 10.03.2010. However, considering the fact that the appeal is of the year 2005, I am inclined to dispose the appeal on merits after hearing the learned counsel for the appellant.
The first respondent claimed to be a loadman and sustained grievous injuries in an accident which occurred on 23.03.2001 when he was travelling along with co-workers in a Van bearing Reg. No. TN-59-J-9829 owned by the second respondent and insured with the appellant company, claimed compensation of Rs. 4,99,152/-. The commissioner for Workmen''s Compensation, Madurai on evaluation of pleadings and evidence awarded a sum of Rs. 18,980/-. Aggrieved by the finding of the Deputy Commissioner of Labour, Madurai, the insurance company has preferred this appeal.
This Court has entertained the appeal on the following substantial questions of law:--
"1. Whether the learned Commissioner is correct in awarding compensation to the applicant when the applicant travelled in the van bearing Regn. No. TN-59-J-9829 as a gratuitous passenger and not as a loadman as seen from the FIR given by one of the persons who travelled in the said van?
Whether the learned Commissioner was correct in coming to the conclusion that the applicant travelled in the van as loadman on the basis of statement recorded under Section 161(3) Cr.P.C. by the Police, contrary to the statement in the FIR?
Whether the learned Commissioner was correct in awarding compensation especially when there is no employer-employee relationship between the owner of the vehicle and the applicant?"
Mr. M. Ramarathinam, learned counsel appearing for the appellant submitted that the Commissioner for Workmen''s Compensation, Madurai has failed to consider that the first respondent had travelled in the van belonging to the second respondent only as a gratuitous passenger and not as loadman/cleaner. He further submitted that the vehicle was a goods vehicle as per Ex. A1, FIR, the first respondent along with others were returning after attending ear boring ceremony and travelled only as a gratuitous passenger and not as an employee of the second respondent. It is also the contention of the learned counsel for the appellant that the Commissioner for Workmen''s Compensation had erred in his conclusion that the first respondent was an employee under the 2nd respondent by relying the statements recorded under Section 161(3) of Cr.P.C. by the police at the time of investigation. Learned counsel for the appellant further submitted that as there was no employer and employee relationship between the owner of the vehicle and the first respondent, the insurance company is not liable to indemnify the insured.
Heard the learned counsel for the appellant and the 2nd respondent.
Before adverting to the facts of this case, it is relevant to extract the provision dealing with the employer''s liability for compensation. Section 3(1) of the Workmen''s Compensation Act, which deals with the employer liability is extracted hereunder:--
"3. Employer''s Liability for Compensation:--1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to - i) the workman having been at the time thereof under the influence of drink or drugs, or
ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen."
Before the Commissioner for Workmen''s Compensation, the first respondent examined himself as P.W.1. One Mr. S. Vijayan, Administrative officer of the appellant insurance company was examined as R.W.1. The Head Constable of Karupayurani Police Station, Madurai where the FIR was registered was examined as Court witness C.W.1.
Upon perusal of the application counter statement filed by the opposite parties, oral evidence and documents marked, the Commissioner for Workmen''s Compensation inter alia framed the following issues:--
"1. Whether the first respondent was a workman as defined under Workmen''s Compensation Act?
If so, whether he sustained in an accident that arose out of and in the course of employment?.
If yes, quantum of compensation payable; and 4.Ther person liable to pay the compensation."
The second respondent, the owner of the vehicle remained ex-parte before the authority. Mr. Duraipandi, Head Constable attached to Karuppayurani Police Station, Madurai who was examined as C.W.1, has deposed that during the investigation he had obtained the statements of Ramaiya, K. Muniyandi, P. Muniyandi, Nagapandi, Mottaian and Kumar under Section 161(3) Cr.P.C., and they have stated that they had travelled in the van as loadman and he has also filed the said statements as Ex. C.2. The copy of the statement of the first respondent, was marked as Ex. R.2.
Though, the appellant insurance company had examined the Administrative Officer of the Company as R.W.1 and reliance was placed on Ex. R.5 investigation report, in the absence of examination of the author of the investigation report, the Commissioner for Workmen''s Compensation discarded his evidence. Moreover, the appellant insurance company has not taken any steps to examine the driver of the vehicle, to support their contention that the first respondent along with others were returning from Alagapuri village after attending ear boring ceremony. In the absence of specific denial and production of concrete material, the Commissioner for Workmen''s Compensation has rightly relied on the evidence let in by the first respondent during the course of enquiry.
The oral testimony of the first respondent coupled with the statements of the other passengers recorded under Section 161(3) of the Cr.P.C. and corroborated by the Head Constable, attached to the Karuppayurani Police Station certainly leads to the possible inference that the first respondent had travelled in the van only as a loadman. It is a well settled legal position that the first information report is only a piece of evidence to set the criminal law in motion and it can be safely relied on only for the purpose of proof of accident, if not contradicted by any other legal evidence. When the police officials have enquired the first respondent he had categorically stated that he had travelled in the vehicle only as a cleaner. If there was any doubt in the mind of the appellant insurance company, they could have very well examined the author of the Ex. R.5 investigation report as well as taken adequate steps to examine the driver of the vehicle. The finding of the fact recorded by the authority can be reversed only if there is any perversity or if it is of no evidence. Being a goods vehicle, one could reasonably presume that the vehicle would have been lent for carrying goods intended for transporting goods for the above said function. Merely because the first respondent has been described as an agriculturist in the FIR Ex. A1 that alone cannot be a ground to discard the statements recorded under Section 161(3) Cr.P.C. as well as the oral evidence let in by the respondent and the Court witness namely, the Head Constable. Finding of fact rendered by the authority compensation cannot be challenged as a substantial question of law.
In view of the above discussion, I do not find that the Commissioner for Workmen''s Compensation has erred in coming to the conclusion that the first respondent travelled in van as an employee of the 2nd respondent on the date of accident. The quantum is not disputed. The finding of the Commissioner for Workmen''s Compensation is confirmed and the Civil Miscellaneous Appeal is dismissed. No costs.