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Himachal Pradesh High Court · body

2007 DIGILAW 403 (HP)

UNITED INDIA INSURANCE CO. LTD. v. DESH RAJ

2007-09-28

DEEPAK GUPTA

body2007
JUDGMENT : Deepak Gupta, J. 1. This appeal is directed against the order of the commissioner under the workmen's compensation Act, Palampur in case No. 2 of 2001; decided on 22.8.2006 whereby he has held the appellant insurance company liable to pay compensation of Rs. 1,21,004 and interest on the said amount at the rate of 12 per cent per annum from 15.12.2000 till date of deposit. 2. The appeal has been admitted on the following substantial questions of law: (1) whether the insurance company is liable to pay interest u/s 4-A of the workmen's compensation Act on the awarded amount of the interest component is to be borne by the employer under the law? (2) Whether the claimant can be permitted to lead evidence beyond pleadings? (3) Whether insurance company under the policy of insurance taken under the Workmen's Compensation Act by the employer in respect of his 2 masons and 3 labourers can be made liable to indemnify the workmen of another employer not covered under the said policy of insurance? 3. Workman, respondent No. 1 herein, fifed a petition for grant of compensation alleging that while employed as workman with opposite party Nos. 1 and 3, Bachhitar Singh and Duni Chand, on 15.12.2000, he received personal injuries in an accident arising during the course of his employment. The allegations in this regard are contained in para 2 of the petition which read as follows: (2) The cause of the injury was that on 15.12.2000 when the workman, who was working as driver with the opposite party No. 1 was helping in getting the concrete mixer unloaded from the truck No. HP 29-0566 owned by the opposite party No. 1 upon which he was driver, the concrete mixer suddenly veered off and fell from the truck upon the applicant in consequence of which he was crushed under the mixer. Copy of F.I.R. attached. 4. Truck No. HP 29-0566 is admittedly owned by Bachhitar Singh who was opposite party No. 1 in the trial court. He and Duni Chand, who was opposite party No. 3 in the trial court, filed a common reply in which it was stated as follows: (1) In reply to para 1 of the application, it is submitted that the contents of this para are wrong to the extent that the applicant was employed with opposite party No. 1. He and Duni Chand, who was opposite party No. 3 in the trial court, filed a common reply in which it was stated as follows: (1) In reply to para 1 of the application, it is submitted that the contents of this para are wrong to the extent that the applicant was employed with opposite party No. 1. In fact, the applicant was working as a labourer with the opposite party No. 3 and he received personal injury by accident on 15.12.2000. (2) In reply to para 2 of the application, it is submitted that the contents of this para are wrong and hence denied. It is wrong to allege that the applicant was working as driver with opposite party No. 1. In fact, on 15.12.2000 during the shifting of concrete mixer, the applicant received personal injury by accident. 5. The learned Commissioner recorded evidence and during the course of evidence the workman also changed his stand and stated that he was engaged as labourer with Duni Chand, opposite party No. 3. Duni Chand had obtained a policy of insurance, Exh. RW2/A from the appellant insurance company in which he had got workmen compensation coverage for 5 employees, i.e., 2 masons and 3 labourers, working on bridges and roads anywhere in Himachal Pradesh. The Commissioner has come to the conclusion that the workman was an employee of Duni Chand and was working as a labourer and as such covered under the said insurance policy. The insurance company aggrieved by the said order has filed the present appeal. 6. I have heard Mr. Harish Bahl, learned Counsel for the appellant, Mr. Ashutosh Burathoki, learned Counsel for workman and Mr. Dushyant Dadwal, learned Counsel for Bachhitar Singh and Duni Chand. 7. The main contention raised on behalf of the insurance company is that the original stand of the workman was that he was employed as a driver with Bachhitar Singh and he was not employed as a labourer with Duni Chand and, therefore, not covered under the terms of the policy. It is also submitted that insurance company was not given proper opportunity to lead evidence. 8. I have carefully gone through the record of trial court. The first information in respect of the accident was given by the workman himself while lodging the F.I.R. The F.I.R. was attached with the petition filed for grant of compensation. It is also submitted that insurance company was not given proper opportunity to lead evidence. 8. I have carefully gone through the record of trial court. The first information in respect of the accident was given by the workman himself while lodging the F.I.R. The F.I.R. was attached with the petition filed for grant of compensation. Workman Desh Raj while appearing in the witness-box as PW 1 has stated that he had lodged a report regarding the accident and copy of the same is marked as 'mark A'. This report was got proved by the workman by examining PW 4, Anita Devi, who has produced the original report and in cross-examination has stated that the report was recorded by her at the instance of Desh Raj. F.I.R. is Exh. PW4/A. In this F.I.R. it is recorded that the police officials went to the hospital receipt of the knowledge of the accident. The Medical Officer was asked to certify whether the injured, i.e., the workman was in a condition to make a statement. He certified that the statement of the injured could be recorded. In the statement of Desh Raj recorded by the police, he has stated that he was working as a driver with Duni Chand Chandel on truck No. HP 29-0566 for about 22 years. He has further stated that on 15.12.2000 at about 5.30 in the evening when a concrete mixer was being unloaded from his truck, he was helping the labourers and suddenly girder got unbalanced and the concrete mixer fell on him. 10. The first version given by the claimant when his statement u/s 154, Criminal Procedure Code was recorded by the police was that he was employed with Duni Chand as a driver on the truck. The next version given by the petitioner is in the claim petition which has been quoted above. In this also he has stated that he was working as a driver with Bachhitar Singh. In both the versions, it is clearly stated that the workman was employed as a driver and not as a labourer. No case was set-up till that stage that the workman was employed as a labourer with Duni Chand. 11. Another important factor which has come to light during the hearing of the appeal is that Duni Chand is actually the son of Bachhitar Singh. No case was set-up till that stage that the workman was employed as a labourer with Duni Chand. 11. Another important factor which has come to light during the hearing of the appeal is that Duni Chand is actually the son of Bachhitar Singh. This fact was not brought to the notice of the Commissioner or this Court at any stage either by Bachhitar Singh or by Duni Chand or by the workman. Though in all the proceedings and applications the parentage of Bachhitar Singh was given but for reasons best known, the parentage of Duni Chand was not given. However, Bachhitar Singh and Duni Chand had filed a common reply and while appearing in the witness-box, Duni Chand had appeared as a general attorney of Bachhitar Singh. 12. The power of attorney is Exh. R1 and it is in this power of attorney that it is mentioned that Duni Chand is the son of Bachhitar Singh. It is obvious that the truck in question was in the name of Bachhitar Singh. Probably Duni Chand, being his son, was looking after his business and that is why in the F.I.R. the workman had stated that he was employed as driver on truck No. HP 29-0566 with Duni Chand. Duni Chand and Bachhitar Singh tried to hide their relationship during the proceedings. The vehicle in question was not insured. Realising that burden of paying compensation to the workman may fall on them, it is apparent that a false case was set-up that the workman was employed as a labourer with Duni Chand. This was done with the sole purpose of fastening the liability of paying compensation on the appellant insurance company. 13. Duni Chand has, no doubt, stated that workman was employed as a labourer with him. He is a government contractor. He has not produced any record such as muster roll, employment register, attendance register, etc. to show that Desh Raj was employed as labourer with him. This record has been withheld from the court and an adverse inference has to be drawn against Duni Chand that if this record had been produced, it would have shown that the workman Desh Raj was in fact employed as a driver. 14. In the statement made in the court, Desh Raj stated that he was engaged as a labourer with Duni Chand. 14. In the statement made in the court, Desh Raj stated that he was engaged as a labourer with Duni Chand. However, in cross-examination by the insurance company he has admitted that the application in question was prepared by his lawyer under his instructions. He also admits that he possesses a driving licence bearing No. 536/80. According to him on that day one Lovely was driver on the truck. He has feigned ignorance that he had made statement to the police that he was engaged as driver as reflected in the F.I.R. He also admits that he cannot produce any documentary proof to show that he was employed as a labourer with Duni Chand. His statement is totally contradictory to what has been stated by him in the claim petition. No party can be permitted to lead evidence contrary to its own pleadings. The evidence of Desh Raj insofar as it relates to his employment is totally contradictory to his pleadings and no reliance can be placed to it. 15. Shakti Chand, PW 2, is stated to be a co-labourer and according to him Desh Raj was employed as labourer with Duni Chand. Even he in cross-examination has admitted that Desh Raj is actually a driver and according to him whenever Desh Raj goes outside Himachal Pradesh then he works as a driver. This statement cannot be believed. A driver will be a driver whether within Himachal Pradesh or outside. 16. From the perusal of the evidence and material on record, it is obvious that Desh Raj had a driving licence. It is very difficult to believe that a person who held a driving licence for more than 20 years, would be working as a labourer. Lovely, who is stated to be driver of the truck, has not been produced. Who was driving the truck on the said date? It is more than abundantly clear that it was Desh Raj who was the driver of the truck. The whole story about him being a labourer has been concocted at a later stage only to fasten the insurance company with the liability to pay the compensation. 17. It is contended by Mr. It is more than abundantly clear that it was Desh Raj who was the driver of the truck. The whole story about him being a labourer has been concocted at a later stage only to fasten the insurance company with the liability to pay the compensation. 17. It is contended by Mr. Ashutosh Burathoki, Advocate, that even if it is believed that Desh Raj was a driver, then also if he was asked to work as a labourer and accident occurs, he should be treated as a labourer under the terms of the policy. As pointed out above, the policy covered 2 masons and 3 labourers working on the bridges, buildings and the roads in Himachal Pradesh. Assuming for the sake of argument that the loading/unloading of a concrete mixer is part of this job, even then as per the statement of Desh Raj there were 7-8 other labourers who were loading the concrete mixer. Only 3 labourers were covered vide the term of the policy. It will be obvious that for the labourers to be covered, they have to be shown in the employment of Duni Chand. No such material has been placed on record. 18. Another important factor to be noticed is that the insurance company was not given any opportunity to rebut evidence led by the petitioner or opposing counsel. Record of the case shows that no opportunity was given to the insurance company to lead its evidence. Normally this Court would have remanded the case back for recording evidence of the insurance company, but in this case from the material on record it is clear that Desh Raj was not covered under the terms of the insurance policy and, therefore, there is no point in remanding the case. 19. In view of the above discussion I hold that the workman was employed as a driver with Bachhitar Singh and Duni Chand. That he was not covered under the terms of the policy and the liability to pay compensation under the Workmen's Compensation Act is only that of the employer. Accordingly the award of the Commissioner under the Workmen's Compensation Act insofar as it holds the insurance company -liable to pay the compensation is set aside. 20. It is further held that the liability to pay the compensation is only of respondent Nos. 2 and 3 jointly and severally. Respondent Nos. Accordingly the award of the Commissioner under the Workmen's Compensation Act insofar as it holds the insurance company -liable to pay the compensation is set aside. 20. It is further held that the liability to pay the compensation is only of respondent Nos. 2 and 3 jointly and severally. Respondent Nos. 2 and 3 are directed to deposit the amount of compensation of Rs. 2,21,004 as assessed by the Commissioner along with interest at the rate of 12 per cent per annum w.e.f. 15.12.2000, the date of accident till deposit of the amount before the Commissioner on or before 12.11.2007. In case they fail to deposit the amount by the said date the said respondent Nos. 2 and 3, Bachhitar Singh and Duni Chand shall also be liable to pay penalty at the rate of 50 per cent of the amount of compensation, i.e., a sum of Rs. 1,10,502. The appeal is disposed of in the aforesaid terms with no order as to costs.