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Himachal Pradesh High Court · body

2013 DIGILAW 719 (HP)

D. K. Gupta v. Ahilya Devi

2013-08-06

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This appeal is directed against the order dated 31.12.2012 passed by the Commissioner under Workmen's Compensation Act in W.C. case No. 12 of 2006/1 of 2011. 2. "Key facts" necessary for the adjudication of this appeal are that respondents No.1 and 2/claimants (hereinafter referred to as the "claimants" for convenience sake) filed a claim petition against the appellant and respondents No. 3 to 5 seeking compensation of Rs. 4,82,818.70 paise alongwith interest and penalty from the date when the compensation became due till its payment. According to the claimants, deceased Ajay Mandal was employed for the work of laying of tower line from Largi to Kangu at place Surahi Khad (Sanyanji) Sub-Division Gohar, District Mandi. The appellant was awarded work of stringing and sagging K.V. tower line from tower No. 30- 40 within the sub-Division Gohar, District Mandi by respondents No. 3 to 5, i.e. H.P.S.E.B. Ltd. Ajay Mandal met with an accident on 24.12.2004 while coming down from the tower after tightening the wire. The accident was reported to the police authorities. The intimation was also sent to the Board. The post-mortem examination was conducted on 25.12.2005. His age was 24 years. His monthly wages were Rs. 4,420/-. 3. The petition was contested by the H.P.S.E.B. Limited. According to them, the appellant was awarded the work for providing unskilled labour for the execution of unskilled work of stringing and sagging of conductor on 132 K.V. double circuit transmission line from Larji to Kangu. According to them, the accident has taken place during the course of employment of appellant. They were not responsible for the same. Climbing on the tower and working on the wires was beyond the scope of work awarded to the appellant. It was in violation of the terms and conditions of the agreement. 4. The appellant has also filed separate reply. According to him, the workman was engaged on 22.12.2004 on daily wages of Rs. 100/-. He was employed as Beldar for doing unskilled work. He had left the place at 4.50 P.M. The three workmen of the Board, namely, Tulsi Ram, Krishan Pal and Ram Lal were on the spot. He received a telephone call from T-mate Krishan Pal about the accident at 5.20 P.M. According to him, the deceased acted at his own peril. According to him, the Board was getting the skilled work done from the deceased. He received a telephone call from T-mate Krishan Pal about the accident at 5.20 P.M. According to him, the deceased acted at his own peril. According to him, the Board was getting the skilled work done from the deceased. The sum and substance of the reply was that the respondent-Board was liable to pay the compensation and not the appellant. 5. The rejoinder was filed by the claimants. The issues were framed by the Commissioner. He awarded a sum of Rs. 3,27,705/- to the claimants to be recovered from the appellant alongwith interest @ 12% per annum from the date of death, i.e. 24.12.2004. Hence, the present appeal. 6. Mr. Satyen Vaidya has vehemently argued that the accident has taken place due to the negligence of the employees of respondents No. 3 to 5. According to him, his client had never instructed the deceased to climb the tower to remove the clamp. 7. Mr. Tarlok Chauhan has argued that the deceased was working with the appellant and the accident has taken place during the course of employment with him. 8. Mr. Shivendra Singh has supported the order dated 31.12.2012. 9. I have heard the learned counsel for the parties and have perused the order meticulously. 10. In order to ascertain the responsibility for the death of deceased, it is necessary to scan the evidence led by the parties. PW-1 Ranjeet Mandal is the father of deceased Ajay Mandal. According to him, his son used to work as wire fitter. He was getting Rs. 4,500/- per month. He was 24 years old. He has produced on record certificate Ex.PW-1/A and Pariwarik suchi Ex.PW-1/B, police reports Mark 'A' and Mark 'B', post mortem report Ex.PW-1/C and withdrawal letter Ex.PW-1/D. He has also proved copy of certificate Mark 'C' and skilled labour certificate mark 'D'. He has denied the suggestion that his son did not know how to work as a fitter. 11. PW-2 Susheel Kumar has testified that the deceased was a co-worker. He used to work as fitter with the appellant. He was paid Rs. 140/- per day. On 24.12.2004 when they were working at Surahi Khad, deceased Ajay Mandal climbed the tower. While he was climbing down after opening the clamp, the wire gave way and Ajay died on the spot. Some of the employees of the Board were also present on the spot. He was paid Rs. 140/- per day. On 24.12.2004 when they were working at Surahi Khad, deceased Ajay Mandal climbed the tower. While he was climbing down after opening the clamp, the wire gave way and Ajay died on the spot. Some of the employees of the Board were also present on the spot. Krishan Chand and Ram Lal were amongst those employees. The police visited the spot. Post-mortem of the deceased was conducted. The deceased used to work as fitter in Bhutan earlier. He has denied the suggestion that they used to do even that work in which they were not skilled. He denied the suggestion that he was a Beldar. He reiterated that he was a fitter. He has denied the suggestion that on 24.12.2004 the work had already been completed and the work of opening of clamp was to be done. According to him, the contractor was not present on the spot. He had left the spot about half an hour ago. The T-mates of the Department were present. 12. RW-1 Dhani Ram Sharma has deposed that he was working as Executive Engineer (Transmission), Sub- Division, Bilaspur from 2003 to 2005. The work was awarded to the appellant pertaining to stringing and sagging of conductor 132 K.V. double circuit line from Larji to Kangu. He has proved Ex.RW-1. He has testified that ground level work was awarded to the appellant and the labour to carry out the work was to be arranged by the contractor. The accident has taken place due to fault of the deceased. He has admitted the suggestion that there was no clause in the agreement that appellant would pay the compensation. He has admitted that the employees of the Department used to remain on the spot to ensure that the laying of the wire was carried out properly. The employees, namely, Tulsi Ram, Ram Lal and Krishan Lal were present on the spot. According to him, the deceased was opening the clamp and the employees of the Department had stopped him from doing so. According to him, Ajay Mandal died while working as per the instructions of the contractor. He has also admitted that as per award letter, some part of the work was to be carried out through the skilled labour by the Department and some of the work was to be got done from the unskilled labour. According to him, Ajay Mandal died while working as per the instructions of the contractor. He has also admitted that as per award letter, some part of the work was to be carried out through the skilled labour by the Department and some of the work was to be got done from the unskilled labour. According to him, the ground level work was over and the work of opening the clamp remained to be done, which did not pertain to the ground level. He has admitted that the work was to be conducted by the Department through skilled labour. He has denied the suggestion that the work was to be done under the supervision of the Superintending Engineer and Foreman. He volunteered that the work was to be done under the supervision of skilled T-mates and Linemen. According to him, the work of opening of clamp was deferred for the day and the employees of the Department had already left the work. 13. RW-2 Ram Lal T-mate (transmission), Sub- Division Sundernagar has deposed that he was working on the spot on the date of accident. The ground level work was being carried out through the contractor while the ground level work was being done by the Department. They had finished the work at 4.30 P.M. They came to know about the incident at 4.45 P.M. The accident took place due to own fault of the deceased, who climbed the tower out of his own will. He was unskilled worker. In his cross-examination, he has admitted that the ground level work had already been finished and only clamp opening work was left which was to be carried out through the Board. He has admitted that the contractor had left the spot before the accident. He had gone to Ghaneri alongwith his material. He has denied the suggestion that they had sent the deceased for opening of the clamp. He has admitted the suggestion that the work was being supervised by the workmen of the Department. The Munshi of the contractor was on the spot, who was getting the work done. 14. Appellant D.K. Gupta has led his evidence by way of affidavit Ex.DA and has appeared as RW-4/2. He has reiterated the stand taken in the reply. RW-4/1 Bahadur Singh has appeared on behalf of the appellant. The Munshi of the contractor was on the spot, who was getting the work done. 14. Appellant D.K. Gupta has led his evidence by way of affidavit Ex.DA and has appeared as RW-4/2. He has reiterated the stand taken in the reply. RW-4/1 Bahadur Singh has appeared on behalf of the appellant. According to him, the contractor was entrusted with the work of sagging of wires at Surahi Khad. He was working at ground level. The labour had already finished the ground level work. The contractor had left for Ghaneri. Tmates Krishan Lal, Ram Lal and Tulsi Ram were present on the spot. The deceased was engaged as Beldar. Tmates asked the deceased to open the clamps in absence of the contractor. The contractor had instructed the labour to do only the ground work. When the deceased climbed the tower to open the clamp, wire snapped and he died. According to him, the accident took place due to the negligence on the part of the employees of the Board. He has also deposed that other labourers, namely, Dhandev, Mohar Singh and Gopal were holding the rope alongwith four others. Neither the contractor nor his Munshi was present on the spot. The work had already finished. 15. What emerges from the evidence discussed hereinabove is that Ajay Mandal was 24 years old. He was getting Rs. 4,420/- per month. It has come on record that he was fitter. He had also worked at Bhutan. The work of stringing and sagging was assigned to the appellant as per Ex. RW-1. The appellant had been given only the ground level work. The contractor had already left the spot. However, three employees of the Board, namely, Tulsi Ram, Krishan Pal and Ram Lal were present on the spot. RW-1 Dhani Ram has admitted categorically that the employees of the Board used to remain on the spot to supervise the work. RW-2 Ram Lal has admitted that the ground level work was over and only opening of clamp was to be carried out. He has also admitted that the contractor had left for Ghaneri. He has also admitted that the work undertaken by the labour was supervised by the employees of the Board. The Munshi of the contractor was on the spot, who was getting the work done. He has also admitted that the contractor had left for Ghaneri. He has also admitted that the work undertaken by the labour was supervised by the employees of the Board. The Munshi of the contractor was on the spot, who was getting the work done. He has admitted that he has not made any entry regarding the closure of the work at 4.30 P.M. He has admitted that the representatives of the Board used to give instructions to the Munshi of the contractor to get the work done. It has come in the statement of RW-1 Dhani Ram that the coworker used to do skilled as well as unskilled work. 16. It is duly proved that deceased Ajay Mandal had climbed the tower to open the clamp on the basis of the instructions imparted to him by the staff of the appellant as well as Board. He could not climb the tower to open the clamp without specific instructions from his Munshi and the representatives of the Board, who were present on the spot. He had removed the clamp and the accident took place when he was climbing down from the tower when the wire snapped. Though the appellant had left the spot, but his Munshi and other staff was on the spot. It has also come in the statement of RW-1 Dhani Ram that the work was being supervised by the representatives of the Board. The laying of wire is hazardous job. It was necessary for the appellant as well as Board to take necessary precautions to avoid accident. It is a case of contributory negligence on the part of the appellant as well as the employees of the Board. Ajay Mandal had climbed the tower on the basis of the instructions issued to him by the Munshi of the appellant, but the work was to be supervised by the employees of the Board. The accident has taken place during the course of employment. The claimants have proved the date of birth of the deceased vide Ex.PW-1/A. The appellant and the employees of the respondent-Board were negligent, as such, they are liable to pay compensation proportionately. 17. Accordingly, in view of the observations and analysis made hereinabove, the appeal is partly allowed. The appellant and respondent-Board are liable to pay a sum of Rs. 3,27,705/- proportionately to the claimants. 17. Accordingly, in view of the observations and analysis made hereinabove, the appeal is partly allowed. The appellant and respondent-Board are liable to pay a sum of Rs. 3,27,705/- proportionately to the claimants. They are also liable to pay interest @ 12% per annum. The order dated 31.12.2012 is modified to this extent only. Pending applications, if any, also stands disposed of. No costs.