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2016 DIGILAW 2082 (HP)

Najro Devi v. Bhawani Transport

2016-09-27

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. - Appellant-claimant Najro Devi is in appeal before this Court. She claimed herself to be the wife of Man Bahadur, a workman on the establishment of M/s. Bhawani Transport, Village Sataun, Sub Tehsil Kamaru, District Sirmaur, H.P., the first respondent. On the fateful day i.e. 6.7.1997, he was driving a truck bearing registration No. WB-71-0254, which met with an accident near Tibetan Colony, Tilordhar and died on the spot itself. 2. The petitioner, who has claimed to have solemnized marriage with deceased Man Bahadur on 26.8.1996 at Paonta Sahib, has filed a petitioner under Section 22 of the Workmen's Compensation Act for award of compensation to the tune of Rs. 3,00,000/-. Learned Commissioner below vide award dated 5.2.2004 annexed to the present appeal has awarded a sum of Rs. 1,01,670/- with interest @ 9% per annum w.e.f. 6.7.1997 to the petitioner with a stipulation to release the same to her on production of Legal Heirs Certificate or Dependent Certificate or Succession Certificate. The insurer respondent No. 2, however, brought the award so passed in favour of the petitioner to this Court in CMPMO No. 199 of 2004. The same was decided vide judgment dated 7.3.2006 with the following observations: "In the present case even though the Commissioner had framed issue No. 3 yet, perhaps because of ignorance of law on this part or the lack of understanding of correct legal position by him he skirted and avoided to return a finding on Issue No. 3 and instead deferred it by making the above quoted observations about respondent No. 1 obtaining "Legal Heirs Certificate/Dependent Certificate/Succession Certificate". Since respondent No. 3 has now admitted about such a lapse on his part, I do not wish to proceed against him. Based on his own admission as well as based on the result of the aforesaid discussion, this petition is disposed of by making the following order:- 1. The matter is remanded to respondent No. 3. 2. Respondent No. 3, in the light of the aforesaid observations is directed to decide issue No. 3 and return a positive finding with respect thereto. The matter is remanded to respondent No. 3. 2. Respondent No. 3, in the light of the aforesaid observations is directed to decide issue No. 3 and return a positive finding with respect thereto. If in the course of such decision it occurs to respondent No. 3 or to the parties that there is either insufficient evidence or that some material on record has to be brought, respondent No. 3 either sue motu or at the instance of the parties or any one of them may bring on record additional material as and by way of aid to deciding Issue No. 3. 3. If the finding on Issue No. 3 goes in favour of respondent No. 1, the amount deposited by the petitioner with the Commissioner shall be disbursed to respondent No. 1. 4. If, however, the finding on issue No. 3 goes against respondent No. 1, this amount shall be returned to the petitioner because the only consequence, the only natural corollary of such finding on Issue No. 3 would mean that despite the Commissioner's finding on other Issues, the claim application filed by respondent No. 1 would be liable to be dismissed on the ground of her not being a dependent of the deceased workman. The matter on remand is fixed before the Commissioner on 17th April, 2006. All the parties through their learned counsel are directed to appear before the Commissioner on that date. The Commissioner shall proceed to dispose of the matter in the light of the aforesaid observations very very expeditiously and in any event before 31st July, 2006." 3. Learned Commissioner below on remand of the claim petition has returned the finding on issue No. 3 against the petitioner and as a result thereof, the petition has been dismissed vide impugned award dated 26.12.2006 4. The legality and validity of the impugned award has been questioned on the grounds inter alia that the documentary evidence produced by the petitioner has been mis-appreciated and misinterpreted. Cogent and reliable evidence as has come on record by way of affidavits Ex. PA and Ex. PB and also the Certificate Ex. PC issued by the Registration Officer as per the provisions of Special Marriage Act showing the petitioner to be the legally wedded wife of deceased workman has erroneously been discarded. Cogent and reliable evidence as has come on record by way of affidavits Ex. PA and Ex. PB and also the Certificate Ex. PC issued by the Registration Officer as per the provisions of Special Marriage Act showing the petitioner to be the legally wedded wife of deceased workman has erroneously been discarded. The evidence as has come on record by way of testimony of RW-2 that the petitioner has solemnized marriage with Man Bahadur after the death of her previous husband Singha Ram has also erroneously been ignored. 5. The appeal has been admitted on the following substantial questions of law:- 1. Whether the Id. Workman Commissioner wrongly returned the finding on issue No. 3 when there is ample evidence on record with regard to the marriage of deceased Man Bahadur and appellant? 2. Whether marriage with the Nepali, the provisions of Special Marriage Act were applicable? 6. Ms. Anita Jalota, Advocate learned counsel representing the petitioner has invited the attention of this Court to the certificate Ex. P2/B and also the affidavits Ex. PA and PB as well as the certificate Ex. PC and urged that such documentary evidence available on record establishes satisfactorily the factum of the petitioner being legally wedded wife of deceased Man Bahadur. The attention of this Court has also been drawn to the oral evidence as has come on record by way of the testimony of Sunil Mittal Advocate, PW-1 and Mr. Mohan Singh Chauhan, Secretary, Gram Panchayat, Kanrau, PW-2. Therefore, according to Ms. Anita Jalota, learned counsel, in view of the cogent and reliable evidence available on record the petition could have not been dismissed. 7. On the other hand, Mr. Deepak Bhasin, learned counsel representing the insurer respondent No. 2 has strenuously contended that there is no iota of evidence to show that the petitioner and deceased Man Bahadur has solemnized marriage strictly as per law. It is pointed out that Man Bahadur, was a Nepali National and Najro, the petitioner is also a Nepali National. In India they could have solemnized valid marriage only under the Special Marriage Act, 1954. However, no evidence has come on record that they were legally wedded husband and wife. The petitioner, according to Mr. Bhasin, is not entitled to the award of compensation. 8. In India they could have solemnized valid marriage only under the Special Marriage Act, 1954. However, no evidence has come on record that they were legally wedded husband and wife. The petitioner, according to Mr. Bhasin, is not entitled to the award of compensation. 8. The question of law as formulated have to be adjudicated upon in the light of the given facts and circumstances and also the evidence available on record as well as the submissions made by learned counsel representing the parties on both sides. Both questions of law are being taken up together for adjudication in order to avoid the repetition of evidence and conflicting findings. 9. Petitioner admittedly was married to one Singha Ram, again a Nepali National. The local Gram Panchayat i.e. Kamrau in Tehsil Paonta Sahib, District Sirmaur, has informed the insurer through its Assistant Branch Manager RW-1 that the petitioner is widow of one Singha Ram. RW-2 Bahadur Singh, the then Pradhan Gram Panchayat, Kamarau has stated that Najro is known to him and that she was married to one Singha Ram. She was registered as wife of Singha Ram in the Panchayat record. Two daughters Anita and Sushila were born to Nazaro from the lions of said Shri Singha Ram. The certificate Ex. DW- 2/A to this effect has been proved by RW-2 Bahadur Singh. According to him, Najro has not solemnized marriage with anyone-else. 10. True it is that reliance on behalf of the petitioner has been placed on her own affidavit Ex. PB and that of her deceased husband Man Bahadur Ex. PA. Last para of the affidavit Ex. PB reveals that the marriage was solemnized as per Hindu rites and customs in the Temple of Lord Shiva. The petitioner and said Man Bahadur could have not solemnized marriage under Hindu Marriage Act or the Succession Act, being Nepali. Even if it is believed that the marriage was solemnized as per Hindu rites and customs, it was required to be registered in terms of the provisions contained under the Special Marriage Act 1954 because the petitioner and deceased Man Bahadur were not Indian National and rather Nepalis. Even if it is believed that the marriage was solemnized as per Hindu rites and customs, it was required to be registered in terms of the provisions contained under the Special Marriage Act 1954 because the petitioner and deceased Man Bahadur were not Indian National and rather Nepalis. The Act ibid has been enacted by the British Government in India with sole object to enable a person in India and all Indian Nationals in Foreign Countries irrespective of faith they profess in the matter of marriage to solemnize the marriage and get the same registered under the Act. 11. The petitioner and Man Bahadur being foreigners could have solemnized the marriage in India, however, their marriage have termed valid had the declaration been made by them within the meaning of 3rd schedule to the Act. For registration of their marriage in the manner as provided in 4th schedule, no doubt, as per the affidavit Ex. PA, deceased Man Bahadur was unmarried and aged 32 years whereas as per Ex. PB, the petitioner has declared herself to be a widow, aged 30 years, however, the declaration so made by them is not signed by three witnesses as required under Section 11 of the Act read with schedule 3. Not only this, but there is no proof that they get the marriage registered in terms of Section 13 read with 4th schedule because the certificate in the form as given in 4th schedule has not been produced in evidence. The certificate was required to be signed by the Marriage Officer designated under the Act, besides, the Bridegroom and Bride. 12. Not only this, but before registration of the marriage in the manner as aforesaid notice of not less than 30 days in terms of Section 5 of the Act was required to be issued by the Marriage Officer and it is thereafter, after hearing the objections, if any, the order qua registration of a valid marriage could have been passed. No such evidence has, however, come on record. The order Ex. PC of Sub Divisional Magistrate, Paonta Sahib is qua registration of the Marriage of the petitioner with Man Bahadur in the record of Gram Panchayat, Kamarau, however, for want of proof qua solemnization of a valid marriage, no such order could have been passed. No such evidence has, however, come on record. The order Ex. PC of Sub Divisional Magistrate, Paonta Sahib is qua registration of the Marriage of the petitioner with Man Bahadur in the record of Gram Panchayat, Kamarau, however, for want of proof qua solemnization of a valid marriage, no such order could have been passed. Therefore, the present is a case where cogent and reliable evidence qua solemnization of a legal and valid marriage is lacking and the petitioner cannot claim the compensation under the provisions of Workmen's Compensation Act on account of death of Man Bahadur in a Motor Vehicles Accident. 13. As a matter of fact, the petitioner while in the witness-box as PW-2, has admitted that she is the widow of Singha Ram and on his death she received compensation from the Court. Therefore, the documents Ex. PA, Ex. PB and Ex. PC etc., seem to have been engineered and fabricated merely to grab money from the insurer respondent No. 2. Being so, the present is not a case where it can be said that the evidence available on record has not been appreciated in its right perspective and on that count the findings recorded by learned Commissioner below are vitiated. The petitioner and deceased Man Bahadur being Nepali National could have solemnized a valid marriage only in accordance with the provisions contained in the Special Marriage Act. Therefore, the impugned award cannot be termed to be legally and factually unsustainable. As a matter of fact, no question of law what to speak of the substantial questions of law as formulated in this appeal arises for determination. 14. For all the reasons herein above, this appeal fails and the same is accordingly dismissed. Pending applications, if any, shall also stands disposed of.