BHIMABEN WD/O BHAGOJI RAGHOJI UTTEKARversusNANUBHAI RAMANLAL SHAH

   C/FA/1035/2009                                JUDGMENT DATED: 08/01/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 1035 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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            Approved for Reporting               Yes          No

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        BHIMABEN WD/O BHAGOJI RAGHOJI UTTEKAR & ORS.
                                  Versus
                NANUBHAI RAMANLAL SHAH & ANR.
==========================================================
Appearance:
MR. BK. RAJ(3794) for the Appellant(s) No. 1,2,3,4,5,6
RULE SERVED for the Defendant(s) No. 1,2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                             Date : 08/01/2026

                            ORAL JUDGMENT


     Learned advocate for the appellant seeks permission to

delete the name of appellant No. 6 as heirs of deceased appellant

No. 6 are already brought on record.


     Permission, as sought for, is granted. The name of appellant

No. 6 be deleted from the array of parties.




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1.      The present First Appeal is filed under Section 30 of the

Workmen’s Compensation Act, 1923 (hereinafter, referred to as

the “Act”) by the appellants – original applicants, challenging the

judgment and order dated 30.09.2008 passed by the Workmen’s

Compensation               Commissioner,       Vadodara     in     Workmen’s

Compensation Application (old) No. 36 of 1989, (new) No. 32 of

1998.


2.      Heard learned advocate, Mr. B.K. Raj for the appellants.

Though served, none appeared for the respondents.


3.      The brief facts of the case are as follows:


        3.1     The case of the applicants before the learned

        Commissioner was that deceased, Bhagojirao Uttekar, was

        in the employment of opponent Nos. 1 and 2, who are in the

        business of putting up advertisement boards at Public

        Places. Opponent No. 1 is the contractor and opponent No. 2

        is a supervisor. Deceased was being paid Rs.15/- per day

        over and above over-time charges by opponents. Opponents

        issued attendant card in the name of “Maharani Vallabhdas

        Shah”.        On     06.11.1988,    deceased      was    painting        an

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C/FA/1035/2009                                 JUDGMENT DATED: 08/01/2026




  advertisement board opposite Saiyaji Hospital, Kubereswar

  Temple in Kirti Mandir compound. The deceased, while

  painting the advertisement board, fell from the structure of

  the advertisement board and sustained injuries. He was

  taken to hospital and during the treatment, deceased

  expired. Deceased was aged about 39-40 years and, as per

  the case of claimants, deceased was also doing some other

  labour work and was earning Rs.30-35/- per day. A Notice

  dated 24.12.1988 was issued by the applicants, as

  contemplated under the Act, to the opponents. As opponents

  failed to deposit the amount of compensation before the

  learned        Commissioner,    the      claimants    filed    a    Claim

  Application claiming compensation with interest and penalty.

  The summons of the Claim Application were duly served

  upon the opponents. Opponent No. 1 appeared and filed

  written-statement at Exhibit – 24. Opponent No. 2, though

  served, did not file any written-statement. Claimant No. 1

  examined herself, as well as, examined one witness, Bajirao

  Pendarkar at Exhibit - 62. The opponents did not lead any

  evidence. After considering the evidence, the learned

  Commissioner rejected the application on the ground that the

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     C/FA/1035/2009                           JUDGMENT DATED: 08/01/2026




       applicants have failed to establish a relationship of employee

       and employer between deceased and opponents.


       3.2      Being aggrieved and dissatisfied with the impugned

       judgment and order, the claimants have filed the present

       First Appeal.


4.     Learned advocate for the appellant contended that the

claimants have established a fact that the deceased was under the

employment of opponent No. 1. A reliance has also been placed

upon an attendant-card, wherein, the name of deceased is

mentioned. In the said attendant-card, name of “Maharani

Vallabhdas Shah” is mentioned. The claimant No. 1, in her

deposition, has stated that deceased was in the employment of

opponent No. 1. The said fact has been supported by a witness at

Exhibit – 62, Bajirao Pendarkar. It is further pointed out by learned

advocate for the appellant that in the written-statement, the

opponents have admitted that before the date of incident, there

was a talk between the deceased and opponent No. 1 for the

painting of the advertisement board. The rates were also decided

among themselves. The deceased had started the work of painting



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     C/FA/1035/2009                         JUDGMENT DATED: 08/01/2026




the advertisement board. However, deceased fell down from the

structure of the board which is an accident. This admission is

enough to establish a relationship of employee and employer

between the deceased and opponent No. 1. However, it is

contended that the learned Commissioner has not considered this

important admission in the written-statement and has given undue

weightage on the lacunas found in the oral deposition of claimant

No. 1, as well as, the witness. It is further contended that in

absence of any contrary evidence led by opponent No. 1, the

admission made in the written-statement, is sufficient to establish

relationship. The injury has arisen out of and in the course of

employment. Except above, no other submissions were canvassed

by learned advocate for the appellants.


5.     Having considered the submissions canvassed by learned

advocate for the appellant and on perusal of the Record and

Proceedings, an undisputed fact culls out on record that on

06.11.1988, deceased, while painting an advertisement board in

the campus of Kirti Mandir, fell from the structure of the board and

expired. It also appears from the written-statement, Exhibit – 24,

filed by opponent No. 1 that, before the date of accident, deceased


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   C/FA/1035/2009                           JUDGMENT DATED: 08/01/2026




was given the work of painting an advertisement board by

opponent No. 1 and the price was also fixed at Rs.1.20 paisa per

sq. feet. The deceased had also started the work of painting the

advertisement board. However, the deceased lost his balance and

fell down from the structure of the board. Resultantly, deceased

expired. The opponents, have conveniently not entered in the

witness-box and have also not led any contrary evidence. The

applicants have also examined a witness at Exhibit – 62, who has

also deposed the fact that on 06.11.1988, deceased was in the

employment of opponent No. 1 and died due to falling down from

the structure of the board. The mandatory requirement of the

issuance of Notice of the claim was also satisfied by the claimants,

as can be seen from the Notice dated 24.12.1988 produced on

record at page No. 211 of the Record and Proceedings. It appears

that no reply is given by opponents and the compensation, as

mandated under Section 4A of the Act, has neither been deposited

before learned Commissioner nor paid to claimants by opponents.

The provision mandates that when the employer is in default of

making payment of compensation due within a period of one

month from the date it fell due, the commissioner shall direct the

employer in addition of the amount of compensation a simple

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    C/FA/1035/2009                                    JUDGMENT DATED: 08/01/2026




interest at the rate of 12% over and above the amount of

compensation with penalty not exceeding 50% on such amount. It

is well settled proposition of law, that the Act is a piece of social

security and welfare legislation. The dominant purpose of the Act

is to protect the workmen and the provisions of the Act are not to

be interpreted in a narrow manner so as to exclude the employee

from compensation. Strict proof, as contemplated under the Indian

Evidence Act, 1872 is not expected while deciding the application

under the Employee’s Compensation Act. Learned Commissioner

is expected to interpret the evidence in a lenient manner, more

particularly, when the opponents – objectors choose not to contest

the Claim Application by leading any contrary evidence. The

evidence in the present case is sufficient in establishing a fact that

there existed a relationship of employee and employer between

the deceased and opponent No. 1. The learned Commissioner has

completely given a go-by in considering an admitted fact which is

found in the written-statement. In my view, the learned

Commissioner has committed a grave error in rejecting the

application. Resultantly, the First Appeal deserves to be allowed

and the same is allowed. The impugned judgment and order dated

30.09.2008           passed   by    the          Workmen’s       Compensation

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         C/FA/1035/2009                                                      JUDGMENT DATED: 08/01/2026




   Commissioner, Vadodara is hereby quashed and set aside. The

   Workmen’s Compensation Application (old) No. 36 of 1989, (new)

   No. 32 of 1998 is hereby allowed accordingly.


   6.        Record and Proceedings, be sent back to the concerned

   Court / Tribunal, forthwith.

                                                                                             (D. M. DESAI,J)
   MUSKAN


Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: MUSKAN AJAY MENON(HC02359), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 13/01/2026 14:51:38




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