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2016 DIGILAW 2036 (HP)

Sucha Ram v. Rajinder Singh

2016-09-21

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Appellant-claimant Sucha Ram is in appeal before this Court. The complaint is that learned Commissioner, under the Workmen Compensation Act, (SDM), Nalagarh, District Solan, vide order dated 30.3.2007 passed in a petition under Section 22 of the Act (case No. 7/200), has erroneously denied the award of compensation to him. 2. The appellant-claimant himself is the driver of truck No. HP12-3693. Owner of the truck is none-else, but his son Rajinder Kumar, the first respondent. In the petition, it has been alleged that on 17.1.2005, after loading the truck in the premises of Gauntermenn Peiper India Ltd. Bharatgarh, while in the process of setting the tarpaulin right on load portion of the truck, he fell down and sustained injuries. He was given first medical aid at Rajpura. Later on, he went to CHC Nalagarh on 4.3.2005 for his treatment. According to the appellant-claimant, the injuries he received by way of fall from the truck have resulted in permanent disability and now there is complete loss of earning. While he has claimed his age as 48 years, the wages per month is stated to be Rs. 4,000/- in addition to Rs. 100/- as daily allowance. It is with these submissions he has filed the claim petition before the learned Commissioner below for award of just and reasonable compensation. 3. The first respondent has admitted the case as set out in the claim petition in to. The petition, however, was resisted and contested by the insurer respondent No. 2 on the grounds inter-alia that the appellant was not holding a valid and effective driving licence and also that had he been met with an accident, the insured-respondent No. 1 should have given intimation in this regard to respondent No. 2. The insured-respondent No. 1 has not filed any claim petition and as such the accident allegedly occurred on 17.1.2005 is denied being wrong. It is pointed out that the appellant-claimant is father of the insured respondent No. 1 and not driver of the truck. As per the prescription slip of a hospital at Nalagarh, the appellant got himself treated on 4.3.2005, whereas the injuries were allegedly sustained by him by way of fall on 17.1.2005. It is also denied that the monthly salary of the appellant was Rs. 4,000/- per month and daily allowance as Rs. 100/- per day. 4. As per the prescription slip of a hospital at Nalagarh, the appellant got himself treated on 4.3.2005, whereas the injuries were allegedly sustained by him by way of fall on 17.1.2005. It is also denied that the monthly salary of the appellant was Rs. 4,000/- per month and daily allowance as Rs. 100/- per day. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the applicant is a workman under the definition of the WC Act? OPA 2. Whether the applicant sustained injuries during the course of his employment under respondent No. 1? OPA 3. Whether the applicant is entitled for compensation, If yes to what extent and from whom? OPA 4. Whether the applicant was holding a valid and effective driving licence at the time of accident? OPR-2 5. Relief. 5. Learned Commissioner below on appreciation of the given facts and circumstances and also the evidence available on record has arrived at a conclusion that the appellant was working as driver with Truck No. HP12-3693, hence is a workman, however, he has not sustained injuries during the course of his employment. The appellant as such was not entitled to the award of compensation. 6. The legality and validity of the impugned award has been questioned in the present appeal. The appeal has been admitted on the following substantial questions of law. 1. Whether the learned Commissioner (Workmen Compensation) has gravely erred by not giving due weightage to the pleadings and proof as well as the material available on record? 2. Whether the learned Commissioner (Workmen Compensation) has gravely erred by not relying upon the documents duly proved in accordance with law? 3. Whether lodging of FIR is a prerequisite for claiming compensation under the Workmen Compensation Act, 1923? 4. Whether the workmen while doing a part of his duty or anything incidental thereto met with an accident and sustained injuries would not mean that the accident has arisen out of and in the course of workmen's employment? 7. The findings that the appellant is a workman on issue No. 1 have attained finality being not assailed any further by the insurer-respondent No. 2. The substantial questions of law, on which the appeal has been admitted, pertain to the entitlement of the appellant to receive the compensation from the respondent. 7. The findings that the appellant is a workman on issue No. 1 have attained finality being not assailed any further by the insurer-respondent No. 2. The substantial questions of law, on which the appeal has been admitted, pertain to the entitlement of the appellant to receive the compensation from the respondent. Admittedly, the incident, in which the appellant allegedly sustained injuries on 17.1.2005, has neither been reported to the Police nor to the insurer-respondent No. 2. In view of the facts of this case when the appellant has not received injuries in the accident and rather by way of fall from top of the load portion of the truck while setting right the tarpaulin put thereon for protection of the goods loaded, hence in these circumstances, the matter was not required to be reported to the police. Respondent No. 1 was, however, under an obligation to have reported the incident to the insurer respondent No. 2 had the instance been taken in the manner as claimed in the petition. The said respondent has failed to explain such omissions on his part. 8. Interestingly enough, had the injury been sustained by the appellant in the manner as claimed in the petition being fractured by one of his arm, in normal course, he was required to visit the hospital to get the medical check up and got the fractured arm x-rayed. He, however, not went to hospital on that day though in the petition it has come that the first medical aid was obtained by him at Rajpura, however, in Government Hospital/ Private Hospital or from any other person including Vaid, nothing has come on record in this regard. His testimony that the treatment was taken from a local Vaid initially is also remained unsubstantiated because such Vaid has not been examined. In a situation when it is a family affair because the appellant is father of the owner of the truck, his statement that he got treatment from local Vaid, inspires no confidence. The prescription slip of Sub-Divisional Hospital, Nalagarh is Ex. PW-2/B. No doubt, the medical officer attended upon the appellant has diagnosed the fracture of humorous bone, however, there is no history that the fracture was sustained on 17.1.2005 by way of fall from the truck for want of further investigation. The prescription slip of Sub-Divisional Hospital, Nalagarh is Ex. PW-2/B. No doubt, the medical officer attended upon the appellant has diagnosed the fracture of humorous bone, however, there is no history that the fracture was sustained on 17.1.2005 by way of fall from the truck for want of further investigation. It was in fact fracture of humorous bone, could have only been ascertained by way of getting the x-ray conducted. Without such investigation, it cannot be said that the humorous bone of the arm of the appellant was fractured and that too in the incident of 17.1.2005. The disability certificate Ex. PW-1/B dated 3.4.2006 is also of no help to the appellant's case for the reason that PW-1, who issued the same has never examined the appellant medically immediately after the injury received by him and rather after a period over one year i.e. 3.4.2006. At the most, it can be said that PW-1 has examined the appellant to assess the disability and no inference can be drawn that such disability was the result of the injury sustained by way of fall on 17.1.2005. The oral evidence as has come on record by way of the own testimony of the appellant while in the witness-box as PW-2 and that of PW-3 Ajmer Singh for want of any cogent and reliable evidence showing that the appellant in fact had a fall on 17.1.2005 and received injury in his arm on that day. It is not safe to place reliance thereon and to conclude that the appellant got injured on 17.1.2005 during the course of his employment. 9. True it is that the insurer-respondent No. 2 has felt satisfied only with the examination of its Assistant Manager, Sh. Arun Ahluwalia, RW-1 and placing on record the report of the investigator Mark-A. However, in view of the onus to prove that the applicant has sustained injuries during the course of employment and as such he is entitled to compensation, was upon the appellant and as he has failed to discharge the same, therefore, the failure of the insurer-respondent No. 2 to examine the investigator to prove the report in accordance with law is also of no help to his case. 10. Having said so no substantial question of law arises for adjudication in this appeal what to speak of the questions of law as formulated herein above. 10. Having said so no substantial question of law arises for adjudication in this appeal what to speak of the questions of law as formulated herein above. The order passed by learned Commissioner below rather is legally sustainable and the contentions to the contrary are without any substance. 11. For all the reasons herein above, this appeal fails and the same is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.