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2021 DIGILAW 100 (JK)

O. I. Co. Ltd v. Desa Singh

2021-03-22

JAVED IQBAL WANI

body2021
JUDGEMENT : 1. The instant appeal is directed against an Award passed by the Assistant Labour Commissioner, Udhampur (for brevity the Commissioner) in a claim petition No. DWC/2001/9 titled as “Desa Singh and Anr. Vs. Daljit Singh and Ors.,” under Workman’s Compensation Act 1923 (for brevity the Act). 2. The facts as are stated in the memo of appeal are that a claim petition came to be filed by respondents 1 & 2 before the Commissioner qua the death of their son namely Sukhbir Singh stated to be a co-driver of Truck bearing No. PB02R-9806 having met with an accident on 17.10.2000 near Udhampur killing the said co-driver. 3. The appellant herein as also the owner/insured are stated to have filed objections to the claim petition. The owner/insured is stated to have denied the employment of the deceased co-driver by having filed an affidavit before the Commissioner. 4. The Commissioner is stated to have framed eight issues placing the onus to prove the same upon the claimants/respondents 1 & 2 herein. 5. It is being stated that the owner/insured respondent No. 4 addressed a letter to the appellant herein denying the deceased to be his employee and that on the basis of said letter as also the investigation conducted by the police concerned, appellant herein denied the employment of the deceased with the owner/insured. 6. It is being further stated that the appellant herein applied to the Commission for issuance of summons to the witnesses, the appellant thought appropriate and necessary to be examined in respect of the defence it had taken and state to have deposited the diet expenses as well and that the said witnesses despite issuance of notices by the Commissioner did not appear as witnesses resulting into closure of the evidence of the appellant company by the Commissioner and consequently passing of impugned Award. 7. 7. The appellant in the memo of appeal has framed as many as eight questions styling the same to be as the questions of law while assailing the impugned Award inter-alia amongst others on the ground that the Award is bad in law in the facts of the case and that the deceased was not a driver but a passenger in the truck therefore, not a workmen, under the Act, and that the Award suffers from procedural latches as no issue has been framed in respect of the defense raised by the appellant company with regard to the employment of the deceased passenger and that the Commissioner has exercised its jurisdiction in excess and that the claim of the claimants has not been genuine and supported with no evidence much less a documentary evidence. 8. Heard learned counsel and perused the record. 9. Before proceeding to deal with the instant appeal, it needs to be reminded that Workman’s Compensation Act, 1923, is a piece of welfare legislation intended to provide immediate relief to an injured workman or the dependants of a deceased workman who is injured or meets his death by an accident arising out of in the course of his employment. 10. The Act lays down the scheme for determination of the compensation payable to the injured workman or dependants of the deceased workman which is less time consuming, hassle free and intended to ensure that the claim is dealt and disposed of with proper dispatch. Underlying object is that the injured workman or dependants of a deceased workman should not be left high and dry without any source to fall back upon. 11. The purpose is to ensure that the payment of compensation determined by the Commissioner under the Act, is paid/disbursed is not thwarted by procedural wrangles and further litigation and frustrating the very purpose of the Act. 12. With the aforesaid aim and object in mind, this court would test the validity or otherwise the impugned Award on the basis of the questions styled as questions of law framed by appellant in the memo of appeal which questions on perusal in essence reiterate the defense taken by the appellant herein before the Commissioner in its objections qua the character of the deceased as a passenger instead of a workman, alleged failure of the Commissioner to proceed in accordance with law. 13. 13. Perusal of the record reveals that the Commissioner framed eight issues out of which issues 1, 2 & 3 being relevant for the purposes of consideration of the instant appeal are reproduced and extracted as under: - 1. Whether the deceased Sukhvinder Singh son of applicant was employed as driver by the respondent No. 2. ? OPP 2. Whether the deceased died due to accident arising out of and in the course of employment? OPP 3. What was the age and wages of the deceased at the time of death? OPP 14. Perusal of the record suggests that the evidence led in the matter by the claimant/respondent no.1 qua the issues supra before the Commissioner as witness deposed that the deceased was working as driver by profession along with his brother Daljit Singh with owner/insured drawing salary of Rs 3500/= paying Rs. 3000/= out of same to the claimant and having died in an accident while driving the vehicle of the owner/insured. During cross examination the claimant/respondent No.1 herein seemingly has stood by his statement given in examination in chief qua the employment of the deceased with the insured/owner as co-driver. Almost similar statement has been given by the other witnesses of the claimants namely Sudesh Sharma, Dilbagh Singh and Atma Singh all the said witnesses seemingly have stood by their statements given in examination in chief during cross examination supporting and endorsing the statement of the claimant/respondent No.1 herein. 15. Perusal of the record further reveals that the claimants filed an application for summoning of respondent No. 2 as a witness being owner/insured whereupon the said owner/insured had been summoned by the Commissioner. 16. Perusal of the record further reveals that after closure of the evidence of the claimants, the respondents were directed to lead evidence in rebuttal thereto, however, they have failed to adduce any evidence in rebuttal. Respondent No. 3/appellant has filed an application for summoning of respondent No. 2 owner/insured as a witness who has been stated to have written a letter dated 24.12.2001 to the appellant herein denying the deceased to be in his employment. 17. Respondent No. 3/appellant has filed an application for summoning of respondent No. 2 owner/insured as a witness who has been stated to have written a letter dated 24.12.2001 to the appellant herein denying the deceased to be in his employment. 17. Perusal of the record further reveals that despite issuance of summons to respondent insured/owner for appearing as witnesses, upon the application of the appellant herein, owner has not chosen to appear resulting into closure of evidence of the respondents, thus no evidence led at all contrary to that of the claimants. 18. Perusal of the record next reveals that the Commissioner with no evidence led by the appellant herein in rebuttal concluded that the deceased was employed as a co-driver by owner/insured for driving the truck supra having met with an accident on 17.10.2000 and died there in the said accident at the age of 24 years while holding a valid license. The Commissioner held that the deceased had been drawing Rs. 3000/= as salary and therefore, saddled the appellant herein with the liability to indemnify owner/insured in view of the admission that the vehicle in question was insured with the appellant company at the time of the accident. 19. Indisputably no evidence has been led in the matter by the appellant as also by respondent No. 3 before the Commissioner in rebuttal to the evidence led by the claimants/respondents 1 and 2 herein. The appellant herein even failed to dent the evidence led by the claimants during the course of cross examinations of the witnesses of the claimants. Failure of the appellant herein to examine the respondent No.2 insured/owner in support of its objections and the letter dated 24.12.2001 wherein the respondent No. 2 denied to have deceased in his employment as a driver has left no option for the Commissioner except to an inference a tacit admission on the part of the appellant and respondent insured/owner. 20. The Commissioner in the impugned Award rightly has held the deceased to be a workman in the employment of respondent No.2- owner/insured entitling the claimants to a compensation thereof. The said conclusions are purely based upon the questions of fact determined by the Commissioner on the basis of evidence led by the claimants and failure of the respondent/appellant to lead any evidence in rebuttal thereto. The said conclusions are purely based upon the questions of fact determined by the Commissioner on the basis of evidence led by the claimants and failure of the respondent/appellant to lead any evidence in rebuttal thereto. The impugned award cannot in law be reversed on the basis of the questions framed by the appellant which questions in essence are pure questions of facts. A reference in this regard to the judgment of Hon’ble Supreme Court passed in case titled as “Golla Rajanna etc Vs. The Divisional Manager and Anr. Reported in 2016 AIR (SC) 5382, would be relevant and germane wherein at para 10 following is noticed: - “10. Under the scheme of the Act, the Workmen’s Commissioner is the last authority on facts. The Parliament has thought if fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High court is not within the competence of the High court under Section 30 of the Act.” 21. Viewed thus, the instant appeal fails and is, accordingly dismissed. 22. Dismissed along with all connected IA(s).