Judgment:
Sanjay Karol, J.
1. Award dated 7.1.2004 passed by the Commissioner, Workmen's Compensation (SDM), Nalagarh, District Solan, H.P., titled as Bachan Kaur and Ors. v. Dhian Singh and Ors. is subject-matter of challenge in the present appeal filed by the Insurer.
2. The appeal was admitted on the following substantial questions of law:
1. Whether a co-owner of the vehicle and the insured himself can be a 'workman' within the meaning of Workmen's Compensation Act and in the event of his death, the legal heirs are entitled to claim compensation from insurance company under the policy of insurance?
3. The appellant is the insurer of the truck No. HR-38-2134, respondents No. 1 to 5 are the claimants-legal heirs of deceased Dalip Singh, brother of Shri Dhian Singh owner of the vehicle (respondent No. 6 herein) and Shri Jai Ram (respondent No. 7 herein) is the driver of the vehicle.
4. Legal heirs of Shri Dalip Singh being his wife and children filed an application under Section 20 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act), averring (i) deceased Shri Dalip Singh and his brother Shri Dhian Singh jointly purchased Truck No. HR-38-2134 which was registered in their name with new registration No. HP-12-9761 and insured with the National Insurance Company Limited, (ii) a family dispute arose between both the brothers with regard to the joint business and ownership, therefore, Shri Dalip Singh sold his share to his brother Shri Dhian Singh in terms of agreement dated 6.6.2001. With the passing of the consideration and handing over of the possession of the vehicle, Shri Dhian Singh became the absolute owner with the right to exclusively ply the vehicle, (iii) Shri Dhian Singh, however, employed Shri Dalip Singh as a cleaner on the said vehicle on a monthly salary of Rs. 2,500/-, (iv) unfortunately on 8.6.2001 the vehicle met with an accident near village Kalma (Punjab), in which Shri Dalip Singh suffered injuries and died on 9.6.2001 and (v) the deceased being 56 years of age died as a workman in the course of his employment, hence the claimants as legal representatives were entitled for compensation.
5. The owner filed reply in effect admitting all the contents of the petition.
6. The driver filed his separate reply inter alia pleading that (i) there was no dispute between the two brothers (ii) no sale of share in the vehicle took place between Shri Dalip Singh and his brother Dhian Singh, (iii) he was employed as driver by both the brothers in April, 2001, (iv) deceased Dalip Singh as owner used to accompany him in the truck and at times also ply the vehicle, (v) in fact at the time of accident, the vehicle was being driven by Shri Dalip Singh and (vi) it was specifically denied that Shri Dalip Singh was employed as a cleaner by Shri Dhian Singh.
7. The Insurer filed reply inter alia contending that both the brothers were joint owners of the truck and the petition had been filed by misrepresenting facts in order to gain monetary benefits. The relationship of employer and employee between the deceased and owner was denied and the story of transfer of share of deceased in the vehicle was nothing but a concoction of facts being false and incorrect.
The Commissioner framed the following issues:
1. Whether the deceased was workman under the definition of the Act and died during the course of his employment under respondent No. 1.? OPA
2. Whether the applicants are entitled for compensation, if yes from whom? OPA
3. Whether the deceased was not having relationship of employer and employee as he was a co-owner? OPR 3.
8. Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the Commissioner came to the conclusion that share of deceased Shri Dalip Singh in the vehicle in question stood transferred in favour of his brother Shri Dhian Singh vide agreement Ext. P.3/A, which stood proved through the statements of Shri Dilbag Singh (PW-3) and Shri Avtar Singh (PW-4). Based on the testimony of the said witnesses, the relationship of employee and employer between the deceased and Shri Dhian Singh was found to have been proved. The deceased was employed as a cleaner by Shri Dhian Singh at a salary of Rs. 2,500/- per month. Taking the salary to be Rs. 2,500/- and the relevant factor as per Schedule IV, to be 166.29 (for the age of deceased being 46 years), compensation of Rs. 2,07,863 was determined. The liability to pay the same was fastened upon the Insurance Company keeping in view the insurance policy (Ext. R-1).
9. I have heard the learned Counsel for the parties and also perused the record.
10. That the accident took place in which Shri Dalip Singh received injuries and died due to the same stands proved from the statement of Dr. Swaranjit Singh, (PW-2) Medical Officer, Civil Hospital, Anandpur Sahib, Punjab and also H.C. Suresh Kumar (PW-1), Police Station Nurpur Bedi, who have proved rapatrojnamcha (Ext.PW-1/A) and post-mortem report (Ext.PW-2/A).
11. That the vehicle was registered in the joint name of Shri Dhian Singh and Shri Dalip Singh is evident from the Certificate of Registration (Form-23)(Ext.R-2). The same was proved by Shri Dhian Singh, who appeared as RW-1. From the said certificate, it is evident that the vehicle in question stood transferred in the name of Smt. Bachan Kaur, claimant and wife of Shri Dalip Singh on 14.5.2003. Importantly Shri Dhian Singh in his statement did not even whisper anything with regard to (i) transfer of share by his brother of Shri Dalip Singh in his favour in terms of agreement dated 6.6.2001 (Ext.P.3/A); (ii) the employment of Shri Dalip Singh as a cleaner by him on the said vehicle and (iii) the amount of salary or consideration paid to him.
12. Agreement of sale stood proved by its witness Shri Dilbag Singh, who appeared as PW-3. He has undoubtedly deposed that the vehicle stood transferred exclusively in the name of Shri Dhian Singh as there was some dispute with regard to the running of the vehicle. But, however, the fact remains that Shri Dhian Singh was the best person to have deposed with regard to the exact nature of dispute and the payment made by him for transfer of the share in the vehicle. Importantly, the share was transferred just 3 days prior to the accident. Except for Ext.PW-3/A there is no other documentary evidence. Even the statement of Smt. Bachan Kaur was not recorded to disclose as to how the vehicle stood transferred in her name.
13. Shri Avtar Singh (PW-4) one of the claimants, has in effect reiterated the version of PW-3. To my mind, his statement does not inspire confidence. He has deposed that the family was dependant on the salary of their father. This version is obviously incorrect as admittedly the deceased was employed as a cleaner by Shri Dhian Singh just 3 days prior to the accident. He has further admitted that Shri Jai Ram used to drive the vehicle and at times the deceased used to accompany him as a cleaner. The reference is prior to the period of transfer of share in the vehicle. From his statement as also the driver's stand, it is evident that at times deceased used to accompany the driver in the vehicle. In this view of the matter, the version put forth by the claimant that the deceased was employed by Shri Dhian Singh as cleaner does not appear to be true and correct.
14. Apart from the bald statement of PW-4 there is nothing on record to prove the relationship of employer and employee between Shri Dhian Singh and deceased Shri Dalip Singh. Importantly from rapatrojnamcha (Ext.PW-1/A) proved by PW-1 it can be seen that the deceased Shri Dalip Singh was referred to as a co-owner of the vehicle at the time of accident. Had there been a family dispute with regard to the business of the truck, it is not conceivable that the owner would have immediately employed the deceased as a cleaner on the very same vehicle. The deceased is stated to have received Rs. 1,15,000/- from his brother just 2 days prior to the date of the accident. He had no reason to take employment as a cleaner and that too for a paltry sum of Rs. 2,500/- per month. The fact that the vehicle in question subsequently stood transferred in favour of the wife of the deceased, one of the present claimants, also fortifies the version of the Insurer that the plea of transfer of share of deceased and his employment as a cleaner was taken only to put up a false and fictitious claim so as to recover compensation from the Insurer as the vehicle in question was in fact insured in terms of Insurance Policy (Ext.R-1).
15. It is true that the Insurer has not cross-examined the claimants' witnesses with regard to the agreement being either back-dated, forged or set up only to claim compensation, but then, it is equally true that in the present case the relationship of employer and employee does not stand established on record and it cannot be held that the deceased was 'workman' falling within the definition of Section 2 (n) of the Act.
Section 2(n) of the Act reads as under:
(n) 'workman' means any person who is:
(i) a railway servant as defined in Clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule 11, or
(i-a) (a) a master, seaman or other member of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
(d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or
(ii) employed in any such capacity as is specified in Schedule II,
whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them.
A co-owner of the vehicle is not a 'workman' within the meaning of the Act and, as such, his legal heirs are not entitled to file the claim petition and claim compensation under the Act.
16. The personal injury caused to the deceased by the accident did not arise out of or in the course of his employment. Hence neither the owner nor the Insurer is liable to pay the compensation under the provisions of the Act.
17. The Commissioner Workmen, while dealing with Issues No. 1 to 3, not only misread and misappreciated the evidence but returned findings which are perverse, contrary to record and law and hence needs to be set aside. The application itself was not maintainable. The appeal is allowed and the award is accordingly set aside. The claimants are held not entitled to any compensation. The questions of law are answered accordingly.