K.S. Jhaveri, J.
1. This appeal is directed against the judgment and award dated 10th February, 2004, passed in Workmen (N.F.) No. 6/2003 by the Ex-Officio Commissioner for Workmen's Compensation Act and Judge, Labour Court No. 2, Junagadh.
The case of the appellant is that he was a driver and was driving Rickshaw (Chhakda) owned by respondent No. 2 and he was being paid Rs. 5000/- per month. According to him on 12.1.2003 he met with an accident during the course of employment and sustained injuries. Therefore, the aforesaid claim application came to be filed wherein he was awarded a sum of Rs. 1,91,424/- which is challenged in this appeal.
2. Learned Advocate for the appellant submitted that the number of the vehicle was not disclosed by the injured alleged employee. It was also not disclosed in the First Information Report. He submitted that the owner has another Chhakda (delivery van) which was insured and the vehicle involved in the accident was not the insured vehicle. He has further submitted that the injured claimant and the owner of the vehicle are real brothers and therefore there is collusion between the parties.
3. Mr. Shaikh, learned Advocate appearing for the original claimant submitted that the award passed by the learned Commissioner is just and proper and no interference is required.
4. As a result of hearing and perusal of the record certain aspects are nut disputed. Firstly the owner and the claimant are real brothers. The owner has two Chhakdas, one of which bearing No. GJ-ll-V-1749 was insured and the said vehicle was not involved in any accident. The claimant driver himself has lodged the FIR with the police station, but he has not mentioned the RTO registration) number of the delivery van which points out that the said vehicle was not involved in the accident. According to the allegation axle of the rickshaw has damaged, but no claim has been lodged in respect of such damage caused to the vehicle. The number of the vehicle has been disclosed only at the time of deposition and in the application and there is no explanation forthcoming as w why the number of the vehicle has not been disclosed immediately. Apart hum that in the examination-in-chief, the claimant stated that he did not want penalty from the owner, who is his real brother. This also points to the fact that they are in collusion with each other. In view of the above particular fact it is evident that the claimant has failed to prove that in fact the vehicle is solved in the accident was the vehicle which was insured with the appellant. There is no evidence worth the name to show that in fact the claimant was driving the vehicle what was insured inasmuch as he has failed to give the number of the vehicle even in the First Information Report. The fact that the number of the vehicle was disclosed only in the application and at the time of deposition shows that there was collusion between the claimant and the owner of the vehicle who are real brothers. It is also required to be noted that the insured has not filed any written statement which also supports the contention with regard to collusion. I am therefore of the opinion that the learned Commissioner has committed an error in passing the impugned award.
5. In the case of Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd. : 2007 (113) FLR 346 (SC) it is held as under:
In our considered opinion, it is wholly absurd to suggest that the husband would be a 'workman' of his wife in absence of any specific contract. We have no doubt in our mind that for the purpose or proceeding under the 1923 Act, only the appellants have concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a 'workman' under her appears to be a far-fetched one.
6. In the present case also there is nothing to show that there was any contract between the parties especially when both are real brothers.
7. In the premises aforesaid, the impugned judgment and award is quashed and set aside. The amount deposited by the Insurance Company shall be refunded. If the amount is already withdrawn the same shall be recovered from the insured.