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2016 DIGILAW 1591 (HP)

Sodi Singh v. Ram Dassi

2016-08-04

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the order dated 24.9.2015, rendered by the learned Commissioner, Workmen Compensation, Rampur Bushahar, Distt. Shimla, H.P. in case No. WCA/0300048/2012. 2. Key facts, necessary for the adjudication of this FAO are that respondents No. 1 & 2 have filed claim petition seeking compensation on account of death of their son, namely, Rajinder in accident on 16.4.2009. According to the averments made in the petition, the appellant has had employed their son as driver on monthly wages of Rs. 4,500/-. He was workman. The respondents were wholly dependent on the deceased. The accident took place near Jeori at Badhal jungle. Rajinder as well as passengers died in the accident. Rajinder was 23 years of age at the time of death. FIR No. 48 was registered. The appellant paid Rs. 50,000/- to the respondents and assured to make remaining amount of compensation shortly. However, appellant did not make any payment thereafter. 3. The petition was contested by the appellant. He claimed that the deceased was not his driver. The deceased had taken the vehicle without his permission. The employer-employee relationship was denied. He claimed that the deceased was workman of L & T Company. The L & T Company had hired his vehicle on monthly basis. Agreement could not be executed due to non-availability of authorized signatory of the Company. He had paid amount of premium for insurance of the vehicle, but insurance policy could not be obtained due to non-availability of vehicle for inspection. He had employed one Ranjesh Kumar as driver upon his vehicle. He had paid Rs. 2,50,000/- to the respondents. 4. The learned Commissioner framed the issues on 5.9.2012. The learned Commissioner awarded a sum of Rs. 3, 89,900/- to the respondents with interest @ Rs12% per annum from the date of accident i.e. 16.4.2009. Hence, this appeal. 5. Mr. Subhash Mohan Snehi, Advocate for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that learned Commissioner has not correctly appreciated the oral as well as documentary evidence on record. According to him, the relationship of employer and employee has not been proved. His client has never engaged the deceased Rajinder as driver. His client has already paid a sum of Rs. 2,50,000/- to the respondents vide agreement dated 19.4.2009. On the other hand, Mr. According to him, the relationship of employer and employee has not been proved. His client has never engaged the deceased Rajinder as driver. His client has already paid a sum of Rs. 2,50,000/- to the respondents vide agreement dated 19.4.2009. On the other hand, Mr. Rajinder Singh Thakur, Advocate has supported the order/award dated 24.9.2015. 6. I have heard learned counsel for the parties at length and gone through the records and order very carefully. 7. Respondent No. 2 has appeared as PW-1. He has led his evidence by filing affidavit Ext. PW-1/A. He has proved abstract of pariwar register Ext. PW-1/B and copy of release order of the accidental vehicle vide Ext. PW-1/C. He denied the suggestion that the accident has taken place in the morning. According to him, the accident has taken place in the evening. He denied specifically that the appellant has come to his house and executed agreement on 19.4.2009. 8. PW-2 Marchu Ram has led his evidence by filing affidavit Ext. PW-2/A. He testified that the deceased Rajinder was driver of the appellant. He died during the course of his employment. Appellant paid Rs. 50,000/- to Sees Ram. 9. The appellant has appeared as RW-1. He has led his evidence by filing affidavit Ext. RW-1/A. He placed on record agreement Ext. RW-1/B. He has admitted that he was owner of vehicle No. HP-01A-0998. His vehicle met with an accident on 16.4.2009. An agreement was executed on 19.4.2009 at shop. He was not aware about the name of the shop-keeper. He denied that he used to pay Rs. 4,500/- to the deceased. He admitted that Rajinder died while he was driving his vehicle. 10. RW-2 Ranjesh testified that he was driver of the appellant. The appellant has given his vehicle on contract to L & T Company. However, due to non-execution of agreement and non-issuance of the vehicle, he parked the vehicle at Jeori. Rajinder never remained as driver upon this vehicle. 11. RW-3 Ramesh Negi testified that on 19.4.2009, sum of Rs. 2,50,000/- was paid to the respondents by the appellant in his presence. He is Advocate by profession. He denied that the appellant had paid compensation amount of Rs. 50,000/- only. According to him, the agreement was executed in the rental room of the respondents. 12. RW-4 Yashbeer testified that a sum of Rs. 2,50,000/- was paid to the respondents by the appellant. He is Advocate by profession. He denied that the appellant had paid compensation amount of Rs. 50,000/- only. According to him, the agreement was executed in the rental room of the respondents. 12. RW-4 Yashbeer testified that a sum of Rs. 2,50,000/- was paid to the respondents by the appellant. He has admitted in his cross-examination that he was relative of the appellant. 13. The accident has taken place on 16.4.2009. The deceased was 23 years of age. His date of birth was 2.3.1986. The respondents have conclusively proved that the deceased was employed by appellant as driver on vehicle No. HP-01A-0998. The deceased died in the accident. His salary was Rs. 4,500/- per month. There is no merit in the contention of Mr. Snehi, Advocate that the deceased was not driver employed by the appellant. RW-2 Ranjesh has admitted that he was not holding any driving licence. There is no evidence on record to prove that the deceased was employed by L & T Company. The appellant has not placed any copy of agreement to prove that he has handed over his vehicle to L & T Company. 14. Mr. Subhash Mohan Snehi, Advocate has also argued that his client was made to pay Rs. 50,000/- under pressure. However, there is no evidence to this effect. The deceased had died during the course of employment of the appellant. The appellant has also tried to prove that the deceased was under the influence of liquor, however, no evidence to this effect was led by him. Rather, he has admitted in his cross-examination that the accident has occurred due to sliding of the retaining wall. 15. Now, the Court would advert to the execution of agreement Ext. RW-1/B. It is apparent to the naked eyes that there is interpolation in the agreement Ext. RW-1/B. Words “two lac” and figure “2” has been interpolated in the agreement later on. According to RW-1 Sodi Singh, the agreement was executed at a shop, however, he did not remember the name of the shopkeeper. RW-3 Ramesh Negi deposed that the agreement was executed in the house of respondents. RW-4 Yashbeer is closely related to the appellant. RW-4 Yashbeer is also the witness to the agreement, however, he feigned his ignorance about the place where the agreement was signed. Moreover, the memorandum of alleged agreement dated 19.4.2009 Ext. RW-3 Ramesh Negi deposed that the agreement was executed in the house of respondents. RW-4 Yashbeer is closely related to the appellant. RW-4 Yashbeer is also the witness to the agreement, however, he feigned his ignorance about the place where the agreement was signed. Moreover, the memorandum of alleged agreement dated 19.4.2009 Ext. RW-1/B was never sent by the employer to the Commissioner as stipulated under Section 28 of the Workmen’s Compensation Act, 1923. 16. Accordingly, there is no merit in this appeal and the same is dismissed.