BEFORE THE DEPUTY COMMISSIONER OF
LABOUR,
place.
EC
/ 20 .
Name
of the petitioners
---- Petitioners.
VS
Name
of the respondent ---- 2nd respondent
NOTES OF ARGUMENTS FILED
ON BEHALF OF 2ND RESPONDENTS ABOVE NAMED.
1. This claim petition has
been filed by ----- claiming compensation of a sum of Rs.--------/-for the death
of one ------- in a motor vehicle accident which tookplace on ----- while he
was riding an auto bearing regn.no. ----- which was insured with the 2nd
opposite party at the time of accident.
2. To claim compensation
under work man compensation, essential requirement is there should be employer
– employee relationship and the accident must arise during and in the course of
employment. Sec.3 of Employees compensation act clearly states that If personal
injury is caused to a *[employee] 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.
3. In this case the 1st
opposite party had sold his vehicle to the deceased Before the date of accident. The 1st
opposite party has deposed these facts and produced the sale agreement between
him and the deceased. The petitioner says that this 2nd respondent
has not taken any plea regarding this, and not cross examined PW1 regarding
this aspect. This statement by the
petitioner in their notes of arguments is wrong.
4. Actually this 2nd respondent has
taken a plea in their counter statement in para 3 that, the petitioner is put
to strict proof that there was employer and employee relationship between
deceased and the 1st opposite party and he was working as driver in
the auto bearing regn.no. ------------- belonging to 1st opposite
party and the accident took place during
and in the course of employment with
necessary documents and certificates.
5. Moreover in the cross
examination also it was asked to the petitioner (PW1) that they have not
produced any documents to show that the deceased was employed with the 1st
opposite party at the time of accident, and the accident arose out of and in
the course of employment. Even after questioning, petitioner has not
produced any document like salary receipts or voucher, trip sheet appointments
orders or any bit of evidence to show that he was employed with 1st
opposite party at the time of accident and the accident arose out of and in the
course of employment.
6. 1st opposite
party also denies the plea of petitioner that the deceased was employed with
him at the time of accident. He also says that accident had taken place while
the deceased was driving his vehicle in the capacity of owner of the vehicle.
Even after the plea and questioning of 2nd respondent, that
petitioner has not proved the employer -
employee relationship and had not produced any document or evidence to
show that the accident had taken place during and in the course of employment.
When the existence of a fact is questioned and denied by parties to the
litigation (opposite parties) , it is the duty of the petitioners to prove it
with cogent evidence. The burden of proof is now with the petitioner, to
prove that he was employed with the 1st opposite party at the time
of accident and the accident arose out of and in the course of employment.
Since the petitioner had failed to do so adverse inference may be taken.
7. In 2003 ACJ 1454 it is
clearly explained that insurer is liable to indemnify the owner in case of
third party loss, deceased was not employed as driver, liability does not arise
under workmen’s compensation act. It is humbly submitted by this 2nd
opposite party that this claim petition is not maintainable on the ground that
insurer was to indemnify the insured qua loss of third party and it was not to
indemnify the owner for his own rashness and negligence and the legal heirs
could not claim compensation on account of his death in the accident.
8. Since the deceased was
owner of the offending vehicle auto, was
himself owner as such was not a third party under the provisions of the act, so, the insurance company is not
required to indemnify him but is required only to indemnify the owner in case
of third party loss and risk of self injuries and death is not covered under
the present policy. Even if driver is covered under the insurance policy, then
he also having the status of owner of the offending vehicle, the insurance
company is liable to indemnify the owner only in case of third party loss.
9. A contract of insurance
which stipulates to pay compensation for the death of the insured person
himself cannot be said to be a contract of indemnity. If the owner of the
vehicle, who has the benefit of indemnity is himself not covered by the policy,
his representative, unless he be an employee covered by the act is in no better
position in relation to the insurer’s obligations or the absence of it. In the
present case, it is not the case that the deceased was employed as driver, but he is owner himself. Therefore
the liability does not arise under the workmens compensation act, 1923 in
respect of death or bodily to owner cum driver of the vehicle.
10.
The citations quoted
by the petitioner is not applicable to this case. Here the deceased had driven
the vehicle in the capacity of owner of the vehicle which is proved by the
evidence of 1st opposite party and the sale agreement which has been
marked as exhibit. The petitioner in turn has not given any evidence to rebut
this.
11.
In 2017 LLr 338 SC, the owner of the truck had sold the
vehicle to someone else. But here the ownership has been transferred to the
deceased himself.
12.
In 2010 TNMAC 410 insurer putting suggestion to PWs without
pleading in counter statement. But now in this case, the insurer has taken a
plea in their counter statement in para 3 that, the petitioner is put to strict
proof that there was employer and employee relationship between deceased and
the 1st opposite party and he was working as driver in the auto
bearing regn.no. TN 75 C 1328 belonging to 1st opposite party and
the accident took place during and in
the course of employment with necessary
documents and certificates.
13.
2012 ACJ 487 is
regarding non – intimation of transfer of ownership to some other person. In
that case, it was decided that the deceased as driver was covered under the
policy on payment of premium and he was a third party to the insurance
contract, and insurer was held liable. But in the present case, the deceased
himself is the owner of the vehicle and cannot be held as third party.
14.
2017 SAR (civil) page NO.722 is also regarding absence of
transfer of ownership of the vehicle to the insurer. In this case also some
other person I the owner of the vehicle and not the deceased. The question
arose in that case is who is the owner of the vehicle whether 1st
defendant or the 4th defendant, and it was decided that, it is
unnecessary to decide that. But in the present case the deceased himself is the
owner of the vehicle and he cannot be considered as third party.
15.
More over the seating capacity of the vehicle is 4 in all.
But more than 10 persons have travelled in it. And there is permit given to the
vehicle by the RTO to ply within the limits of --------. But at the time of
accident the vehicle had plied in the roads of -----------, which leads to
violation of policy conditions. At this juncture also this 2nd
opposite party is not liable to pay any amount of compensation.
Hence this
hon’ble court may be pleased, having consideration of employer - employee relationship being denied by the
opposite parties and the fact of the accident arising out of and in the course
of employment was not proved by the petitioner, even after denial by the
opposite parties, adverse inference may be taken against the petitioner, and
come to a conclusion that there was no employer – employee relationship between
the 1st opposite party and the deceased and the accident does not
arise during and in the course of employment and this petition may be dismissed
with the cost of this 2nd respondent, and prays that this 2nd
respondent may be exonerated from the proceedings, and thus render justice.
Advocate for 2nd
opposite party.
BEFORE THE DEPUTY
COMMISSIONER OF LABOUR,
Place.
EC
/ 20 .
Name of the petitioners
--- Petitioners.
--------------------------------
NOTES OF ARGUMENTS
--------------------------------
Name of the Respondent..
---2nd respondent
BY
Name of the Advocate.,
ADVOCATE,
PLACE.
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