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2015 DIGILAW 225 (HP)

Kaushalya Devi v. Satyan Sharma

2015-03-21

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This petition instituted against Order dated 7.10.2014 rendered by Employee Compensation Commissioner, Arki, District Solan, HP in Case No. 190/6 of 2013. 2. “Key facts" necessary for the adjudication of the present petition are that petitioners have filed a claim petition on account of untimely death of Manoj Kumar. He was son of petitioner No.1 and father of petitioners No. 2 and 3. He died during the course of employment with respondent No. 1 while working as driver of ill fated vehicle No. HP-51-3461 on 23.10.2006. Respondent No. 1, while filing reply to the claim petition has taken a plea that the ill fated vehicle was sold to deceased Manoj Kumar. Thus, he never remained employee of respondent No. 1. Respondent No.1 has moved an application under Section 65 of the Evidence Act read with Section 151 of the Civil Procedure Code for proving documents by way of secondary evidence. It was specifically averred in the application that he was not the owner of the vehicle in question at the time of accident. He had sold vehicle to Shri Manoj Kumar for a consideration of `35,000/- on 1.4.2006 vide agreement/ document which was duly executed. A sum of `13,000/- was paid on the same day and remaining amount of `22,000/- was to be paid by 6.5.2006. Manoj Kumar had issued post dated cheque dated 5.5.2006 amounting to `22,000/- drawn on Jogindra Central Cooperative Bank Ltd. Danoghat in his favour on the same day i.e. on 1.4.2006. Cheque was returned to Manoj Kumar after receiving balance amount of `22,000/- on 3.5.2006 in cash. Necessary documents i.e. Form 29 and 30, affidavits etc. were executed by him and delivered to Manoj Kumar on 3.5.2006. Application was resisted by the petitioners by filing detailed reply. According to the averments contained in the reply, respondent No. 1 was registered owner of the vehicle at the time of accident. Manoj Kumar was appointed as a Driver. He died in the accident while driving the car. He has never purchased car for a consideration of `35,000/- vide agreement dated 1.4.2006. He has never put his signatures on the documents and any signatures put on said documents are forged and procured as there is no evidence/ receipts on record regarding the payment of alleged consideration made by Manoj Kumar. Neither Manoj Kumar paid `13,000 on 1.4.2006 nor `22,000/- on 3.5.2006. He has never put his signatures on the documents and any signatures put on said documents are forged and procured as there is no evidence/ receipts on record regarding the payment of alleged consideration made by Manoj Kumar. Neither Manoj Kumar paid `13,000 on 1.4.2006 nor `22,000/- on 3.5.2006. Respondent No. 1 has managed the said cheque by way of fraudulent means. There was no evidence on record to suggest that possession of the vehicle in question alongwith documents was delivered to Manoj Kumar. He has never executed alleged documents. It is specifically denied that the cheque dated 5.5.2006 was issued to respondent No. 1 by Manoj Kumar. It is also denied that original documents regarding sale dated 1.4.2006, Form 29 and 30 and affidavit were executed and respondent No. 1 had delivered them to Manoj Kumar. Employee Compensation Commissioner allowed the application vide impugned order dated 7.10.2014. Hence, this petition. 3. Accident took place on 23.10.2006. MAC Petition No. 41-S/2 of 08/06 was instituted on 30.11.2006 by claimants against respondent under Section 166 of Motor Vehicles Act before MACT-II, Solan. Learned MACT framed issue No. 3 on 17.10.2008: - “3. Whether the vehicle has been sold by respondent No. 1 to the deceased Manoj Kumar. If so the effect thereof? OPR-1.” 4. Learned MACT has returned following findings on the same: - “20. NO doubt, it has been claimed that some agreement was entered into vide which ownership of the offending vehicle has been transferred in favour of Manoj Kumar but that document has not been brought on the record not at the same time, it has been established that any efforts had been made for getting the documents i.e. RC and insurance transferred in the name of Manoj Kumar. In case it has been sold the entry ought to have been got affected in RC but that is not there. There being no entry in the RC qua transfer of the ownership or any other evidence to this effect the plea taken is of no avail. Thus, conclusion which could be reached at is that the vehicle was owned by the respondent NO.1 at the time of the accident and deceased had not become its registered owner. Thereby, this issue is decided by holding that the offending vehicle had never been sold by Satyen Sharma to Manoj Kumar.” 5. Thus, conclusion which could be reached at is that the vehicle was owned by the respondent NO.1 at the time of the accident and deceased had not become its registered owner. Thereby, this issue is decided by holding that the offending vehicle had never been sold by Satyen Sharma to Manoj Kumar.” 5. Thus, issue No. 3 was conclusively decided against respondent No. 1 in MAC Petition No. 41-S/2 of 2008/06 arising out of same accident dated 23.10.2006. Other claims arising from same accident dated 23.10.2006 were also instituted being MAC Nos. 28- S/2 of 2008/06 and 46-S/2 of 2008/06. In these petitions also issue No. 3, whether vehicle has been sold by respondent No. 1 to Manoj Kumar, was framed. This issue was decided against respondent No. 1. The Oriental Insurance Company feeling aggrieved by Awards rendered in MAC Petitions mentioned herein above filed FAO Nos. 560/09, 559/2009 and 558/2009, 166/2010 and 167/2010. Respective awards made by learned MACT were upheld. Thus, findings recorded on issue No.3 had attained finality and despite that Employee Compensation Commissioner has allowed the application preferred by respondent No. 1 under Section 65 of Evidence Act on 7.10.2014. Commissioner below failed to exercise jurisdiction vested in him by not correctly appreciating the facts, more particularly, findings recorded by learned MACT and upheld by this Court. Respondent No. 1 has tried to overreach the findings recorded by MACT and upheld by this Court in above mentioned appeals. Employee Compensation Commissioner has also not taken into consideration well settled principles while allowing the application under Section 65 of the Evidence Act, for proving documents by way of secondary evidence. 6. In view of above discussion and analysis, the petition is allowed. Order dated 7.10.2014 by learned Employees Compensation Commissioner, Arki District Solan in case No. 190/6 of 2013 is set aside. Since the accident has taken place in 2006, Employees Compensation Commissioner, Arki is directed to decide the claim petition within three months positively. Registrar General of this High Court shall be informed by him about the decision of the case. Pending applications, if any, are also disposed of.