Judgment:
Subhash B. Adi, J.
1. This appeal is by the insurer, questioning the award dated 26th June 2006 passed by the Commissioner for Workmen's Compensation, Davangere (hereinafter referred as 'the Commissioner').
2. Respondent No. 1 is the claimant. Respondent No. 2 is the owner of the vehicle. Respondent No. 1 filed a claim petition before the Commissioner interalia alleging that, he was working as a coolie (Hamal) with the respondent No. 2. On 3.12.2004, he was travelling in the mini lorry bearing No. KA-17-9497 belonging to respondent No. 2. He had gone to unload maize at Davangere market. When the said lorry reached Kakkaragol-Avaragol road, on account of the rash and negligent driving of the driver, it turned turtle on the left side as a result of which, all the maize bags fell down and in the said accident, he got serious injuries on his waist, left leg, right hand, body and suffered fractures. He was taken to C.G. Hospital, Davangere, where he took one month's treatment. Dr. G. Madhukar gave treatment to the claimant and in this regard, case was also registered by the Police in Crime No. 283/2004 for an offence punishable under Sections 279 and 337 of IPC and further alleged that, he was drawing monthly wages of Rs. 4,000/- and is aged about 18 years. With this allegation, he made a claim before the Commissioner.
3. Respondent No. 2 owner of the vehicle denied the accident interalia stating that, his vehicle had gone to Harapanahalli and it had not gone from Harapanahalli to Davangere nor it had met with an accident nor the claimant is his employee. Appellant also filed the objection statement interalia denying the accident and also the liability.
4. Before the Commissioner, the claimant got himself examined as PW-1 and also examined the Doctor as PW-2 and produced 8 documents Exs.P1 to P8. The owner of the lorry was examined as RW-1 and one representative on behalf of the insurer was examined. In their evidence, they also produced Exs.R1(1) and R1(2). The Commissioner relying on the evidence of the claimant and also relying on the F.I.R. held that the accident had taken place on 3.12.2004 and further held that the claimant is an employee of respondent No. 2 and he has suffered injuries in the said accident and awarded compensation of Rs. 2,03.742/- with interest @ 12% from 30 days of the accident till payment or deposit. It is this judgment has been called in question by the insurer.
5. Sri. A.N. Krishna Swamy, learned Counsel appearing for the appellant, submitted that, the insurer is not liable to pay the compensation, as the accident and also the relationship of master and servant between the respondent No. 2 and respondent No. 1 has not been established. He submitted that, primarily the claimant is required to establish the relationship of master and servant to fasten the liability on the insurer. In this regard, he relied on the evidence led before the Commissioner. He first referred to the objection statement filed by the owner of the lorry and pointed out that the owner of the lorry has denied the accident and has also denied the relationship of master and servant between him and the respondent No. 1. He further referred to Ex.R1(1), the complaint given by the respondent No. 2, the owner of the lorry to the Superintendent of Police on 18.4.2005 and pointed out that, the owner has denied the accident as well as the relationship. He also pointed out from Ex.R1(2), the letter written by the owner to the insurer, wherein he has categorically stated that, the lorry has not met with any accident and further, the claimant is not his employee and requested the insurer not to make any payment of compensation.
6. In addition to this, he also relied on the evidence produced by the claimant. According to the claimant, he suffered the injury in an accident alleged to have occurred on 3.12.2004 whereas, Ex.P4, the wound certificate produced by the claimant shows that, he was admitted to the hospital on 24.12.2004. From the said certificate, he pointed out that, according to wound certificate, he had suffered four fractures and there is no reference to the earlier treatment either in the wound certificate or there is any evidence to show that the claimant had taken treatment from 3.12.2004 to 24.12.2004. In turn, even in the wound certificate at the bottom it is mentioned that the date of admission as 27.12.2004 and date of discharge also shown as 27.12.2004. However, it shows that the x-rays are taken on 24.12.2004. Referring to Ex.P4, he submitted that, if a man suffers injury of the nature mentioned in the wound certificate, which discloses apart from the other injuries, four fractures and wound certificate having not even referred to the previous treatment nor there being any material to show that, what happened between 3.12.2004 to 24.12.2004, it is surprising as to how, for the first time, the claimant would get treatment on 24.12.2004 for such a grievous injury suffered about 21 days prior to the admission in the said hospital. In this regard, he also relied on Ex.P6. an outpatient card and pointed out in the said certificate, it is mentioned that, the claimant alleged to have met with an accident on 24.12.2004, on the back of the said OPD card, 24.12.2004 is sought to be corrected as 3.12.2004 and submitted that, there is no nexus between the alleged accident and these documents. He also referred to the complaint given to the Police as per Ex.P1, F.I.R. in Crime No. 283/2004. If the accident had really occurred on 3.12.2004, there is no explanation as to why crime is registered on 24.12.2004. Only allegation is that, the owner had promised the claimant that he would pay compensation and complaint was not given. He also referred to the statement of the complainant given before the Police on 24.12.2004 and pointed out that, the nature of accident alleged by the claimant himself shows that the lorry got turtle and as a result of which, maize bags fell down and in the said accident, he suffered injuries. If really the claimant had suffered such a grievous injury on 3.12.2004, it is not known as to why the owner has not made a complaint, it is not known as to what happened to the driver, it is not known as to how the claimant could remain without treatment till 24.12.2004.
7. As regard to the evidence of claimant that he was taking treatment in Bapuji hospital, not even a single document is produced to evidence that he had taken treatment from 3.12.2004 to 24.12.2004. In addition to this, he also relied on the Motor Vehicles Accident Report produced by the claimant, which is at Ex.P3 and pointed out that, if the lorry has turned turtle, there should have been some damage to the lorry and the said report show that, no damages. These documents clearly reveal that, for the purpose of making a false claim, the claimant for having suffered injury for some other reason has gone to the hospital on 24.12.2004, may be on account of some incident, injuries might have been suffered on that day at some place, and to claim compensation for some other injuries unconnected with the accident has made a false claim. He submitted that, the entire evidence of the claimant, in the light of the evidence of respondent No. 2, the owner of the lorry, clearly show that there was no accident on 3.12.2004 and claimant is not an employee under respondent No. 2.
8. However, the Commissioner relying on the alleged statement alleged to have been made by the owner of the vehicle before the Police wherein he had filed an application for release of the vehicle and in connection with the same, he had given a statement admitting the accident, the Commissioner has awarded compensation. He submitted that, no doubt, an employee suffering an injury in the course of his employment is covered under the insurance policy, the compensation is required to be satisfied by the insurer, but insurer is not liable to pay, in case where there is no relationship of master and servant and there is no evidence to show that, he suffered injury in the course of employment. In this case, the very documents produced by the claimant themselves do not establish the relationship or the accident on 3.12.2004. However, in a most casual manner, the Commissioner without any due regard to the evidence led by both the owner of the vehicle as well as the insurer has erroneously awarded compensation and submitted that, the award is per se illegal, perverse, contrary to the provisions of the Workmen's Compensation Act and liable to be set aside.
9. On the other hand, learned Counsel appearing for the claimant submitted that, the claimant in his evidence has stated that, since the employer had promised that he would satisfy his claim, he did not file any complaint. Further, claimant had taken treatment on 3.12.2004 and he was under treatment till 24.12.2004 and thereafter, from 24.12.2004 he started taking treatment in Chigateri Hospital, Davangere. He relied on the statement of the employer made before the Police as per Ex.P5 and submitted that, before the Police, the employer has stated that, the accident has occurred and the claimant is his employee and the said statement is recorded on 27.1.2005. Relying on these documents, he submitted that, the Commissioner appreciating the evidence and also considering the evidence of the Doctor has awarded the compensation and there is no error in the award passed by the Commissioner. Even if there is any discrepancy as regard to the wound certificate, that should not be a ground to interfere with the award of the Commissioner and submitted that, the appeal be dismissed.
10. From the rival contentions of the parties, the points that, arise for consideration in this appeal are:
(1) Whether there is a relationship of master and servant between respondent No. 1 and respondent No. 2?
(2) Whether the accident occurred on 3.12.2004 or not?
11. The claim petition is filed under Section 4 of the Act. Section 3 of the Act requires employer to pay compensation for the personal injuries caused to the workman in accident arising out of and in the course of his employment. By reading the provisions of Section 3, it is clear that preliminary liability is on the employer. If the employer is insured the vehicle, the liability is required to be indemnified by the insurer, in this case, there is no dispute that the employer has insured the vehicle with the insurer/appellant. However, as per Section 3, there should be a relationship of employer and employee to maintain the claim petition and nexus between the occurrence of accident and death or injuries sustained by the claimant in an accident arising out of or in the course of employment. In case of death of an employee in an accident arising out of or in the course of the employment, the legal heirs of the employee are entitled to be compensated by the employer, for which the claimant/s is/are required to prove that the deceased was an employee and further the death of the deceased was due to the accident arising out of or in the course of employment.
12. In the case on hand, the claimant claims that he is an employee under respondent No. 2 and has adduced evidence by examining himself as PW. 1 and also producing Exs. P1 to P8 in support of his case to show that, he was the employee under Respondent No. 2 (employer). Apart from his oral evidence, he has mainly relied on the statement given by the 2nd respondent-employer before the police as per Ex.P5. Ex.P5 is dated 27.01.2005 and this statement is recorded by the police after registering the complaint lodged by one Shivakumar, the injured, on 24.12.2004.
13. What is important to be noticed here is that, undisputedly, the accident has taken place on 03.12.2004 and in the said accident as per Ex.P4-Wound Certificate, the claimant has suffered two grievous injuries viz., fracture of right superior ramus and fracture of right inferior ramus and six other injuries. There is no evidence whatsoever to show that the claimant was treated by any other Doctor from 03.12.2004 till 24.12.2004, except the oral testimony of the claimant that he took treatment in Bapuji Hospital. Even assuming that the claimant had taken the treatment in Bapuji Hospital on 03.12.2004, there is no reference as to the earlier treatment or history of injuries referred to either in the wound certificate (Ex.P4) or in the OPD Card (Ex.P6). In turn, Ex.P6, the OPD car of Chlgateri General Hospital, Davangere, dated 27.11.2005 shows that the claimant was admitted on 24.12.2004 on the allegation of sustaining injuries in a road traffic accident on 24.12.2004. In the OPD Card, there is also a correction in the date, i.e., 24.12.2004 is corrected as 03.10.2004, by striking off only the date '24' and writing '03'. Further, except the statement of the claimant before the police, there Is no direct evidence or any other evidence, which shows that the claimant was an employee under Respondent No. 2.
14. As against this allegation. Respondent No. 2, the owner of the lorry bearing registration No. KA. 17.9497, with reference to the claim, he himself has given the complaint as per Ex.R1(i) to the Superintendent of Police on 18.04.2005 denying the accident and stating that the claimed viz., Shivu @ Shivakukmar was not at all his employee and nor his vehicle met with any accident, nor his vehicle was plying on the alleged route on the alleged date of accident and his vehicle was implicated in a false case, and bogus case is created for the purpose of claiming insurance amount. Further Ex.R(1)(ii) is a letter by Respondent No. 2 (owner) informing the Insurance Company not to make any payment of compensation to the claimant as he is neither the employee under him nor his lorry had met with any accident, on the alleged date.
15. Surprise is that though the vehicle met with an accident on 03.12.2004, the complaint is registered after 21 days and even allegations in the complaint are that, the vehicle turned turtle and all the maize bags which were loaded fell on the ground and the claimant got crush injuries and suffered fracture injuries. Even it is surprise to note that though such a serious accident has occurred, the driver has not sustained injures, there is no claim by the driver and neither the driver has filed any complaint. Further, when the vehicle was seized at the in pursuance of the complaint filed by the claimant on 21.04.2004, it was inspected on 27.01.2005 and the Motor Vehicle Inspector mentions no damage to the vehicle and he also finds that the accident has not occurred due to the any mechanical defect. It shows that, there is no nexus between these documents and the alleged accident nor they proved the accident on 3.12.2004. Admittedly all documents produced by the claimants are subsequent to 24.12.2004.
16. In this case, the employer not only appeared before the commissioner, but he also contested the claim petition of the claimant by filing objections and denying the claims. He has categorically stated his vehicle has not met with any accident nor the claimant is his employee. He has also given an intimation to the insurer and also to the police that his vehicle has not met with any accident on the alleged date. If there was an accident on 03.12.2004 there is no reason as to why the complaint is not registered till 24.12.2004.
17. When the claimant has suffered grievous injuries on 03.12.2004 and has suffered two fractures and other six injuries and when he was treated by Chigateri Hospital on 24.12.2004, the Doctor has not noticed any treatment given to the claimant earlier. In case of two fractures, if the claimant had already taken the treatment, there should have been atleast plaster of paris or history of the injuries and treatment, already taken. There is absolutely no explanation. With such grievous injuries claimant could not have remained without treatment. No effort is made by the claimant to produce single document pertaining to earlier treatment to show that he was treated by the Doctor.
18. The Commissioner does not even look into the documents which were very much on record before him and without even considering as to whether there is any relationship of master and servant, or as to why the claimant had not given complaint on 3.12.2004 and as to why he has not produced any document for the period between 3.12.2004 to 24.12.2004, has casually passed the award. At least, when Respondent No. 2 himself has filed statement of objections and led evidence before the Commissioner denying the accident and denying the relationship of master and servant, between him and the claimant, could have looked into these materials, but it is not forthcoming as to why the Commissioner has not looked into the said objections and the evidence of Respondent No. 2, and instead he only referred to the evidence of the complaint and the statement alleged to have been given by Respondent No. 2 - Employer on 27.01.2005 i.e., nearly after more than 1 1/2 months and that statement came to be recorded only when the vehicle was seized on 24.12.2004 in connection with the alleged accident on 03.12.2004. Since without reason the vehicle of the respondent No. 2 was seized, in order to get the vehicle released, the alleged statement of respondent No. 2 might have been recorded. Further it is surprising to note that, when the vehicle of Respondent No. 2 is insured and fully covered with the liability, why should Respondent No. 2 (owner) has to come forward to state that the seized vehicle had not met with any accident and the claimants are not his employees. The claimant does not allege any collusion between the insurer and the owner, and there is no reason for such collusion.
19. In view of the above, what appears from the materials produced before the Commissioner is that, perhaps the claimant must have got injured on 24.12.2004, to take advantage of the compensation, he claims that he got injured in motor vehicle accident while he was working as a coolie in the alleged vehicle. If a coolie goes under heavy load of maize bags and suffers such grievous injuries, it cannot be expected that he could remain without treatment and if he had taken treatment, he would not have kept quiet or the Doctor or the Hospital where he took treatment, would not have kept quiet and they would have reported the said accident to the concerned police. But, no explanation is forthcoming in the materials produced by the claimant as regards to the alleged accident on 03.12.2004, and that the accident cannot be held proved merely because the complaint is given on 24.12.2004.
20. The Commissioner was the Adjudicator and the matter was required to be adjudicated on the basis of the evidence available before him, and he cannot casually look into the documents produced before him to record a finding without the appreciation of the same. In this case, the evidences produced clearly prove that a false complaint is given to make a claim for compensation. The documents produced, such as the wound certificate, OPD card to the effect that alleged claimant had suffered injuries in an accident on 03.12.2004, create doubt and when there is no direct, nexus between the accident and injury, the Commissioner failed in discharging of his duties in adjudication of the matter in proper manner and he has wrongly come to the positive conclusion in regard to the alleged accident and relationship of employer and employee between the claimant and Respondent No. 2.
21. From the materials available on record, I find that the claimant has neither has established the primary fact of occurrence of accident on 03.12.2004 nor he established the relationship of employer and employee between Respondent No. 2 and himself. Therefore, no question of liability arises either on the insurer or the owner of the vehicle-Respondent No. 2, when the fact of accident itself is not proved, the said question does not arise. Hence, the appeal deserves to be allowed.
22. Accordingly the appeal is allowed. The Impugned judgment and award dated 26.06.2006 passed in WCA/CR-102/2005 by the Labour Officer and Commissioner for Workmen's Compensation, Davangere, is set aside.
The amount in deposit before this Court shall be refunded to the appellant-Insurance Company.