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2012 DIGILAW 555 (HP)

Khub Ram v. Vijay Kumar

2012-09-13

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan, J. This appeal has been filed by the workmen against the order passed by the Commissioner under the Workmen’s Compensation Act, Karsog dismissing his claim for compensation. 2. The Workmen instituted the claim petition out of which this appeal arises on the allegations that he was employed by respondent No.1, Joginder Sharma as conductor in truck No. HP-06-2972 and received injuries in the early hours of 30.7.2001 in an accident involving this vehicle at Panipat, Haryana. It was pleaded that the accident occurred during the course of his employment. The workmen claimed 40% permanent disability of left forearm. He has stated that his wages were Rs.3500/- per month. 3. The claim petition was resisted by respondent No.1. One of the grounds urged was that Shri Vijay Kumar son of Shri Shiv Kumar of Village Nogli, Tehsil Rampur was the owner of the vehicle and that it is not owned by Shri Joginder Sharma who has not been impleaded as such. The Insurance Company refuted its liability. Shri Vijay Kumar submitted his reply denying the fact that the petitioner/appellant was ever employed by him. The Commissioner settled six issues on the pleadings of the parties. The first issue was whether the claimant was working as a conductor as pleaded and the second whether the accident occurred in the course of his employment in which he sustained injuries or not. Evidence of the witnesses was recorded and the claim petition dismissed. 4. The Commissioner holds that it was not established on record that the petitioner in fact was employed as conductor on truck No. HP-06-2972. The commissioner further holds that Mohinder Kumar, respondent No.2 who was driver at the time of the alleged accident was a necessary witness who could state about the real controversy between the parties but he was not examined or cited as a witness. The identity of the employer was not established nor was the fact as to what wages/salary etc., he was being paid. The disability certificate Ex.PW1/A though produced on record, did not link it with the accident alleged. Ex.PW1/C which was the discharge slip of the hospital which proved the hospitalization of the petitioner from 1.8.2001 to 24.8.2001. Insurance policy Ex.PW1/D, was produced on record to establish that the truck No. HP-06-2972 (alleged to be involved in the present accident) was owned by Shri Vijay Kumar. Ex.PW1/C which was the discharge slip of the hospital which proved the hospitalization of the petitioner from 1.8.2001 to 24.8.2001. Insurance policy Ex.PW1/D, was produced on record to establish that the truck No. HP-06-2972 (alleged to be involved in the present accident) was owned by Shri Vijay Kumar. It was this evidence which was for consideration before the Commissioner who holds that initially Shri Joginder Sharma was impleaded as a party under whom the claimant was working later on Shri Vijay Kumar. This fact itself led to the conclusion that the petitioner was not aware about the fact that who was his employer. The wages/salary claimed to be Rs.3500/- per month was also not proved on record. There was no first information report with respect to the accident having taken place in Panipat. In these circumstances, the petition was dismissed. 5. The claimant is now in appeal before this Court on two questions of law, namely, that the dismissal of the petition is the result of misreading of the testimonies of Khub Ram and Vijay Kumar and that the dislodging of the FIR by the petitioner was not a sine qua non. Adverting to the second question it may be true that registration of the FIR is not a mandatory condition but nonetheless, it is a corroborative piece of evidence to show as to how the accident in question took place. In the present case, when this requirement is in conjunction with the evidence on record, it is difficult to find fault with the order of the Commissioner. The disability certificate Ex. PW1/A has not been proved by any member of the medical board or the doctor who treated/examined the petitioner. In this eventuality it cannot be read in evidence. On these facts, it is difficult to hold that any error of law has been committed by the Commissioner. The sole clue on record as to whether the petitioner received treatment is Ex.PW1/C which is a discharge slip (Ex.PW1/C) showing his admission in IGMC, Shimla on 1.8.2001 where he remained hospitalized for 24 days. 6. In this eventuality, determination of both the questions do not require any attention of this Court for the reasons that which can be proved by primary evidence cannot be left to be proved by the oral testimony of witnesses. 6. In this eventuality, determination of both the questions do not require any attention of this Court for the reasons that which can be proved by primary evidence cannot be left to be proved by the oral testimony of witnesses. However, what I find from the pleadings of the parties before the learned Commissioner is that they are lackadaisical and no attention has been paid to the pleadings and evidence. Pleadings reveal a casual attitude and the evidence appalling lack of the knowledge of the principles of law of evidence. The Commissioner was not wrong in dismissing the claim of the appellant herein. However, discharge slip Ex.PW1/C does disclose the hospitalization of the claimant in IGMC, Shimla but beyond that it does not connect his injury with the duties performed by the petitioner with the first respondent, if any. 7. Taking into consideration the totality of the facts and circumstances, of the case, this case is remanded to the Commissioner, who shall grant adequate opportunity to the parties to lead further additional evidence in support of their respective contentions. Of course, the evidence on record shall also form a part of the proceedings for deciding the issues as raised in the claim petition. It will be open to the parties to urge/bring on record further evidence as deemed necessary in the facts and circumstances of the case. Parties are directed to appear before the Commissioner under the Workmen’s Compensation Act, Karsog on 30th October, 2012. Appeal stands disposed of. This judgment will not construe as a precedent in any other case. 8. All pending applications also stand disposed of.