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2015 DIGILAW 673 (JK)

OFFICER COMMANDING BEACON v. KHATEEJA BEGUM

2015-12-17

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : 1. The Commissioner under Employees Compensation Act of 1923 (for short Act of 1923) -(Assistant Labour Commissioner), Baramulla (for short ALC), passed an Award on 28th February, 2015 on the claim petition of respondent – Khateeja Begum – widow of Akmat Din Kholi, whereunder, the Appellants have been directed to deposit an amount of Rs. 08,31,920/-as compensation with the ALC, within a period of 30 days for its disbursement to the respondents – claimants. The Award has been passed in terms of section (4) of the Act of 1923. It is this Award, which is called in question in this Appeal. The Award amount stands already deposited with the Registry of the Court. 2. Brief facts of the case, as projected in the claim petition, are that one Akmat Din Kholi, age about 30 years, was employed/engaged as labourer by the Appellants, who, in the course of his employment, sustained injuries on 02nd August, 2011 and subsequently succumbed to his injuries. At paragraph (2) of the claim petition, it is pleaded that the deceased was employed by the Appellants and was working with them for three years prior to the date of filing of the claim petition. At paragraph (4) of the claim petition, it has been pleaded that the monthly wages of the deceased were Rs. 8000/-and he was over 15 years of age. In the claim petition, prayer was made that the Appellants be directed to pay compensation along with interest and penalty from the date, which fell due till its final realization. 3. The Appellants filed Reply to the claim petition, wherein it was stated that the deceased was about 33 years of age and was engaged on daily wage basis. It was also pleaded that the deceased was working through a Mate, namely Bashir Ahmad. Further case projected in the objections was that after completing his work, the deceased left for his home at 4 p.m and after he reached his home, he went to a nearby shop to fetch some household goods and while returning, he met with an accident at 6.30 p.m. It is also pleaded that the deceased was an unskilled labour and was engaged on daily wage basis @ Rs. 172/-per day. It is on these grounds that the prayer for dismissal of claim petition was made by the Appellants. 4. 172/-per day. It is on these grounds that the prayer for dismissal of claim petition was made by the Appellants. 4. The claim petitioner, in support of her claim, besides appearing herself as a witness, also produced one Meraj-ud-din, Mohamad Hassan, Mohammad Fakir & Abdul Aziz as her witnesses. The Appellants, in support of their objections, produced one Mohan Chander, JE, Beacon, as witness to dislodge claim of the claim petitioner. 5. The claim petitioner in her statement recorded on 27th July, 2013 deposed before the ALC, that her deceased husband was working with the Beacon and while on duty, he sustained injuries and subsequently succumbed to the injuries. She further deposed that the deceased was 30 years of age at the time of accident. She also deposed that the monthly income of her deceased husband was Rs. 8000/-pm. She also deposed that the Beacon authorities did not pay any compensation to her. In her cross examination, the claim petitioner deposed that if Mohammad Hanief has given statement that the injuries were not sustained by the deceased in the course of his employment with the Appellants but after completion of his work, then his statement is wrong. She further deposed that at 3.30 p.m, she received a phone call that the deceased died because he was hit by a stone. She also stated that if any person has stated that the deceased was earning only Rs.200/-per day, that too is wrong. 6. The witness Meraj-ud-din, in his statement recorded on 27th July, 2013 before the ALC, deposed that he is working with the Beacon as a labourer for almost three years. He further deposed that in the course of his employment, the deceased was hit by a stone. He has also stated that after the work was over, the deceased was going to his home and he was hit by a stone. The witness has further stated that he had not seen the accident himself but on enquiry, he learnt about it. In his cross examination, Meraj-ud-din deposed that the accident took place at 3 p.m. He also deposed that the work was completed at 2.30 p.m. He further deposed that at the time of accident, he was not accompanying the deceased but some other persons were accompanying him, which include Mohammad Hassan and Musheer Alam. In his cross examination, Meraj-ud-din deposed that the accident took place at 3 p.m. He also deposed that the work was completed at 2.30 p.m. He further deposed that at the time of accident, he was not accompanying the deceased but some other persons were accompanying him, which include Mohammad Hassan and Musheer Alam. He also stated that though Rs.200/-were fixed as daily wages but he cannot say that on the date of accident how much was being paid to the deceased. 7. The witness Mohammad Hassan, whose statement was recorded on 15th June, 2013 by the ALC, deposed that he is working as labourer with the Beacon authorities. He has further deposed that the deceased, during the course of his employment with the Appellants, was injured when he was hit by a stone and subsequently succumbed to the injuries. He has also given, in his statement, particulars about the place of work. He has further deposed that the accident took place at 3 p.m. He has further deposed that the deceased died on the road itself. He has also deposed that after the death of deceased, he and some other labourers informed the officers of the Beacon about death of the deceased. He has also deposed that at the time of accident, the deceased was about the age of 30 years. He has further deposed that the Beacon authorities would pay and amount of Rs. 8000/-per month to him and to the deceased. He has also deposed that the wages of Rs.8000/-pm were being paid to him and the to the deceased by the officers of the Beacon authorities. He also deposed that death of the deceased has had an adverse impact on his family. In his cross examination, Mohammad Hassan deposed that he is not related to the deceased and he is residing away from his residence. He further deposed that the deceased died between 2.30 p.m to 3 p.m. He has also deposed that the working hours of the labourers/workmen were upto 5 p.m but during the month of Ramzan, they will stop work at 3 p.m. He has also deposed that he, along with the deceased, were walking when the stone hit the deceased on his head. He has also deposed that the deceased sustained injuries and subsequently succumbed to the injuries in the course of his employment with the Appellants. He has also deposed that the deceased sustained injuries and subsequently succumbed to the injuries in the course of his employment with the Appellants. On asking of ALC, the witness deposed that some employees of the Beacon including Mohan Chander, JE, Beacon, accompanied the dead body of the deceased to his home. 8. The witness Mohammad Fakir, in his statement recorded on 4th May, 2013, deposed that he knew the deceased. He was working as a labourer with the Beacon. He further deposed that on 2nd August, 2011, the witness and the deceased were working and at around 2.30 p.m and 3 p.m, when they were making preparations for going home, the deceased was hit by a stone and sustained injuries and subsequently, succumbed to the injuries. The witness also deposed that the road, on which he and the deceased were waking, is being constructed by the Beacon. The witness further deposed that his daily income is Rs.300/-and the deceased was also being paid the same wages. He has also deposed that he and the deceased were earning around Rs.8000/-to Rs.9000/-per month and that the age of the deceased was about 28 years. In the cross examination, Mohamad Fakir has stated that he does not have any relationship with the deceased. The witness further deposed that at the time of accident, he was present on spot. He has also deposed that besides him, some other people also saw the accident and many people assembled on the spot. The witness has stated that after the work was over, they were going to home when the accident took place. 9. Yet another witness – Abdul Aziz, in his statement recorded on 27th March, 2013 has deposed before the ALC, that in the course of his employment and while working, the head of the deceased was hit by a stone. He was badly injured and subsequently, succumbed to the injuries. He also stated that the accident took place at about 3 p.m. The witness deposed that the age of the deceased was about 30 years. 10. The Appellants produced one Mohan Chander, JE, Beacon, as their witness before the ALC. In his statement recorded on 7th November, 2013, the said witness deposed that the deceased was working on the road, which was being constructed between the Red Bridge and Dera Gahee. 10. The Appellants produced one Mohan Chander, JE, Beacon, as their witness before the ALC. In his statement recorded on 7th November, 2013, the said witness deposed that the deceased was working on the road, which was being constructed between the Red Bridge and Dera Gahee. On 02nd August, 2011, the deceased, after completion of his work, went to his home and thereafter went to a shop and on his return, the accident took place causing his death. He has also deposed that the deceased died at 6.30 p.m. The witness has specifically stated that he has not seen the accident himself but has only heard about it. In the cross examination, Mohan Chander deposed that he knew the deceased personally. He has also deposed that besides the deceased, about sixty other labourers were working on the road. He has also deposed that the working hours were between 8 am to 5 pm. The witness has stated that the construction work was being done under his supervision. He has also deposed that monthly income of the deceased was Rs.4600/-pm but the salary was not being released to him under his signatures. Witness has further deposed that he informed the police about the accident. The Report, which was given to the police, was shown to him, which he admitted to be true and correct and it was marked as EX PW1/1. 11. Mr. Makroo, learned ASGI, appearing for the Appellants, submitted that the deceased has not died during the course of his employment with the Appellants. He further submitted that in view of the stand taken by them in the objections and in view of the evidence, which has come on record, what emerges is that the deceased, after completion of work, went to his home and thereafter at 6.30 p.m died because he was hit by a stone. Learned counsel submitted that monthly income of the deceased as Rs. 8000/-is exaggerated, in as much as, he was being paid only Rs.4600/-pm. Mr. Makroo further submitted that even if it is assumed that the deceased died during the course of his employment with the Appellants, yet the compensation amount has been calculated wrongly by taking his income as Rs.8000/-pm. Learned counsel, accordingly, prayed for allowing of this Appeal. 12. 8000/-is exaggerated, in as much as, he was being paid only Rs.4600/-pm. Mr. Makroo further submitted that even if it is assumed that the deceased died during the course of his employment with the Appellants, yet the compensation amount has been calculated wrongly by taking his income as Rs.8000/-pm. Learned counsel, accordingly, prayed for allowing of this Appeal. 12. Learned counsel for the respondents – claimants, while referring to the evidence, submitted that the deceased died during the course of his employment and not in the manner suggested by the Appellants. Learned counsel further submitted that the deceased was being paid Rs.8000/-pm, which factum is also proved by the evidence produced by the respondents – claimants before the ALC. 13. The Act of 1923 is a legislation, which is made for benefit of the labour class. The said Act is to be construed in the manner it would protect the rights of the labourers/workmen. 14. It is an admitted fact that the deceased was working as labourer/workman with the Appellants. It is also an admitted fact that he died because he sustained injuries on his head when he was hit by a stone. 15. The witness, Mohan Chander, JE, Beacon, though, in his Examination-in-Chief, has stated that the deceased died after the work was over and after he had gone to his home yet he has specifically stated that he has not seen the accident himself. He has also admitted that the working hours were between 8 a.m to 5 p.m. The said witness has also mentioned that the deceased was being paid Rs. 4600/-pm, but he has also specifically stated that the salary was not being paid to the deceased under his signatures. 16. The respondent – claimant, though not witness to the accident herself, has, however, stated that the monthly income of her deceased husband was Rs.8000/-pm. She has also stated that if any person has stated that the deceased was earning Rs.200/-per day, that is not correct. She has stated that at 3.30 p.m, she received a phone call about death of her husband – Akmat Din Kholi. 17. The witness – Meraj-ud-din, though has deposed that after completion of work, while going to home, the deceased was hit by a stone and was injured and subsequently, succumbed to the injuries, yet he has specifically stated that he has not seen the accident himself. 17. The witness – Meraj-ud-din, though has deposed that after completion of work, while going to home, the deceased was hit by a stone and was injured and subsequently, succumbed to the injuries, yet he has specifically stated that he has not seen the accident himself. He has, however, stated that at the time of accident, two persons, namely, Mohammad Hassan and Musheer Alam were with the deceased. The witness Mohammad Hassan, in his statement, has stated that the deceased, during the course of his employment with the Appellants, was hit by a stone and subsequently, succumbed to the injuries. He has also deposed that he and the deceased and some other labourers/workmen were being paid Rs. 8000/-pm. He has denied the suggestion that at the time of accident, the deceased was going to market. In his cross examination, Mohammad Hassan has stated that he has seen the accident with his own eyes. As already stated, witness Mohammad Fakir, in his statement, has deposed that between 2.30 p.m & 3 p.m, when they were preparing to go to their homes, the deceased was hit by a stone and died because of the injuries received by him. He has also stated that he and the deceased were being paid Rs.8000/-to Rs.9000/-pm. Another witness -Abdul Aziz has specifically stated that while the deceased was working on the road, he was hit on his head by a stone and sustained injuries and subsequently, died. He has further stated that the accident took place at 3 p.m. 18. The statements of all these witnesses, coupled with the deposition of Mohan Chander, JE, Beacon, that the working hours of the labourers were between 8 a.m to 5 p.m, would show that the deceased died during the working hours. The evidence, which has come on record do show that the deceased sustained the injuries in the course of his employment with the Appellants. The evidence, which has come on record do show that the deceased sustained the injuries in the course of his employment with the Appellants. Even assuming for the sake of argument, as has been said by one of the witnesses that while preparing to go to home, the deceased was hit by a stone, still, in view of the statement of witness Mohan Chander, JE, Beacon, it is to be declared that the deceased died during the course of his employment with the Appellants, in as much as, the working hours were from 8 a.m to 5 p.m. The evidence, which has been brought on record that the deceased was being paid Rs. 8000/-as wages per month, has remained uncontroverted, in as much as, no documentary evidence has been produced by the Appellants before the authorities to show the wages which were being paid to the deceased. 19. It is admitted at bar by learned counsel for the Appellants that the Appellants would maintain Attendance Register and Payment Record of the labourers/workmen. This was primary evidence, which was to be produced before the ALC, which they (Appellants) have not done. The statement of Mohan Chander, JE, Beacon, that the deceased was being paid Rs. 4600/-, pm, in this view of the matter, cannot be accepted. Section 91 of the Evidence Act, provides that oral evidence is to be excluded by documentary evidence. 20. In view of the aforesaid discussion, the following findings are recorded : “That the deceased, Sh. Akmat Din Kholi, during the course of his employment with the Appellants, was hit by a stone on his head and subsequently, he succumbed to the injuries sustained by him; The monthly income of the deceased is proved to have been Rs.8000/- per month.” 21. The discussion stands closed. The Appeal is held to be meritless and it is, accordingly, dismissed along with connected IAs. The respondents – claimants, who are deprived of compensation from the year 2011, shall now be paid the compensation amount, which stands already deposited with the Registry of this court. Registrar Judicial to release the deposited amount along with interest in favour of the respondents – claimants by way of Payees Account Cheque on proper identification by their learned counsel.