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2017 DIGILAW 790 (HP)

Santosh Bhatnagar v. Madan Lal

2017-07-12

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this appeal filed under Section 30 of the Workmen''s Compensation Act, the appellant has prayed for setting aside judgment dated 22.09.2009 passed by learned Commissioner under Workmen''s Compensation Act in case No. 01/2007, vide which learned Commissioner dismissed the application so filed before it for compensation by the present appellant as not maintainable. 2. Brief facts necessary for adjudication of the present case are that an application was filed by the appellant/applicant Mrs. Santosh Bhatnagar before learned Commissioner under Workmen''s Compensation Act on the ground that she was mother of deceased Umesh Bhatnagar who was employed in the hotel of the present respondent. As per the claimant, on 03.07.2005 at around 10.30 A.M. deceased Umesh Bhatnagar was working in the hotel of respondent and in course of his employment he fell in a water tank situated at the ground floor of the hotel. Immediately after the accident, Umesh Bhatnagar was taken to Katra hospital where he was declared dead by the Doctors. As per the claimant, total income of the deceased was Rs. 4,000/- P.M. and his age was 35 years at the time of his death. Claimant accordingly claimed compensation for an amount of Rs. 6,00,000/- alongwith interest and penalty from the date of accident. 3. In reply filed to the claim petition on behalf of the respondent, he denied the factum of deceased being his employee and in his reply he took the stand that there existed no relationship of an employer and employee between him and Umesh Bhatnagar at any point of time. 4. On the basis of pleadings of the parties, learned Commissioner framed the following issues:- 1. Whether the present application is not maintainable as this court has no jurisdiction to process this matter? 2. Whether the present application is not maintainable as there existed no relationship of an employer-employee between the respondent and deceased Umesh Bhatnagar? 3. Whether the deceased Umesh Bhatnagar was a workman within the meaning of the Act? 4. Whether the accident that caused Umesh Bhatnagar''s death arose out of or in course of his employment with the respondent? 5. Relief. 5. 3. Whether the deceased Umesh Bhatnagar was a workman within the meaning of the Act? 4. Whether the accident that caused Umesh Bhatnagar''s death arose out of or in course of his employment with the respondent? 5. Relief. 5. On the basis of evidence led before learned Commissioner by the respective parties, the issues so framed were answered as under:- Issue No. 1: No Issue No. 2: Yes Issue No. 3: No Issue No. 4: No. Relief : Application is dismissed. 6. While dismissing the claim petition, it was held by learned Commissioner that it was not in dispute that Umesh Bhatnagar died on account of his falling into a water tank in hotel Hill Top at Katra on 03.07.2005. Learned Commissioner held that in order to hold respondent liable for compensation, claimant was required to prove that her son was a workman at hotel Hill Top employed there by respondent Madan Lal and he died in the course of his employment with the respondent. Learned Commissioner further held that in order to succeed, claimant also had to prove that Umesh Bhatnagar was engaged as a workman at hotel Hill Top and that hotel in issue was owned by respondent Madan Lal at the relevant time. Learned Commissioner further held that except bald averments made in the application and the sole deposition of the applicant, there was no documentary evidence on record adduced by her in support of her contention from which it could be inferred that her deceased son was engaged as a workman in Hill Top hotel and hotel in issue was owned by respondent Madan Lal. Learned Commissioner also held that to the contrary documents Ext. PW4/A and Ext. PX which were produced on record by the claimant leads one to believe that deceased Umesh Bhatnagar was employed as watcherman/waiter in a hotel by Shakti Kumar and there was nothing on record to demonstrate that either the deceased son of the claimant was employed at hotel Hill Top at any point of time or he died in course of his employment in the said hotel or that respondent was owner of the hotel at Hill Top. On these basis, learned Commissioner dismissed the application. 7. Feeling aggrieved, claimant has filed the present appeal which was admitted on 01.09.2010 on the following substantial questions of law:- "1. On these basis, learned Commissioner dismissed the application. 7. Feeling aggrieved, claimant has filed the present appeal which was admitted on 01.09.2010 on the following substantial questions of law:- "1. Whether the case of the appellant is covered under Section 2 sub-section (e) and (f) of the Workmen''s Compensation Act, 1923, as the son of the appellant was engaged by the respondent in the hotel Hill Top where he died during the course of employment? 2. Whether the award passed by the learned Workmen''s Commissioner is in violation of the provisions of Section 2(e) of the Workmen''s Compensation Act, 1923?" 8. As both substantial questions of law are interlinked, therefore, I will be answering both of them together. 9. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by learned Commissioner. 10. Records demonstrate that one Vijay Kumar entered the witness box as PW-2 and he deposed that respondent Madan Lal used to take hotels on lease at Jammu and Manali and deceased Umesh Bhatnagar was serving in hotel Hill Top and he was engaged in the said hotel by the respondent. In his cross-examination, this witness stated that he had not seen any lease of Madan Lal and he had only heard from Madan Lal that he had employed Umesh Bhatnagar. This witness thereafter self stated that the deceased had also informed him about the said fact. 11. Claimant Smt. Santosh Bhatnagar entered the witness box as PW-3 and she deposed that respondent Madan Lal used to run a hotel at Katra and her son was employed in the same by the respondent on monthly wages of Rs. 4,000/- and he died by drowning in a tank of the said hotel. In her cross-examination, she denied the suggestion that the respondent was not having any hotel at Katra and that deceased was never engaged by the respondent. 12. Respondent Madan Lal entered the witness box as RW-1 and in his deposition he stated that he himself used to work in a Guest House at Katra. He further deposed that in June/July, 2005 he was employed in hotel Hill Top at Katra and besides him Kripal, Sham Lal, Pawan Kumar and Joginder were engaged on jobs in the said hotel. He further deposed that the deceased had never worked in hotel Hill Top. He further deposed that in June/July, 2005 he was employed in hotel Hill Top at Katra and besides him Kripal, Sham Lal, Pawan Kumar and Joginder were engaged on jobs in the said hotel. He further deposed that the deceased had never worked in hotel Hill Top. In his cross-examination, he denied the suggestion that he was running hotel Hill Top at Katra on lease basis. He admitted it to be correct that Umesh Bhatnagar died on 03.07.2005 by drowning in a water tank in hotel Hill Top but he denied that Umesh Bhatnagar was ever engaged in the said hotel as a workman. 13. Kripal Singh entered the witness box as RW-2 and deposed that he used to work as waiter in hotel Hill Top in June/July, 2005 and that besides him, Joginder Sham, Pawan and Madan used to work in the said hotel. 14. Thus, it is evident from the record that except bald assertions made in the application as well as in the statement of the claimant to the effect that the deceased was engaged as a workman by respondent Madan Lal and that Madan Lal was the owner of hotel Hill Top where the death of deceased took place, there is no cogent documentary evidence on record from which it can be inferred that the deceased was engaged as a workman in hotel Hill Top and that the said hotel Hill Top was either owned by respondent Madan Lal or that Madan Lal was running the same on lease basis. It is well settled principle of law that he who alleges, has to prove the case. In the present case, it was the claim of the claimant that her son was engaged as a workman in hotel Hill Top by Madan Lal and her son died in course of his employment. Onus to prove all these facts by placing on record cogent and reliable evidence was upon the claimant. Unfortunately, the appellant/claimant has failed to discharge the said onus. There is not even an iota of cogent and reliable evidence on record from which it could be inferred that deceased Umesh Bhatnagar was employed as a workman in hotel Hill Top and further that hotel Hill Top was either owned by respondent Madan Lal and the same was being run by Madan Lal on lease basis. 15. There is not even an iota of cogent and reliable evidence on record from which it could be inferred that deceased Umesh Bhatnagar was employed as a workman in hotel Hill Top and further that hotel Hill Top was either owned by respondent Madan Lal and the same was being run by Madan Lal on lease basis. 15. In these circumstances when the claimant has failed to establish the factum of deceased being workman engaged by respondent Madan Lal and his death having occurred in course of his engagement, then it cannot be said that the case of the appellant was covered under the provisions of Section 2 (1) (e) or Section 2(1) (f) of the Workmen''s Compensation Act or that the award passed by learned Commissioner is in violation of the provisions of Section 2 (1) (e) of the Workmen''s Compensation Act. On the contrary, the findings returned by learned Commissioner are duly borne out from the records of the case and findings so recorded by learned Commissioner can neither be said to be perverse nor it can be said that the same are contrary to evidence on record. 16. Accordingly, as there is no merit in the present appeal, the same is accordingly dismissed, so also pending miscellaneous applications, if any.