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2021 DIGILAW 824 (HP)

Hem Raj Sharma v. Jagindro Devi

2021-10-25

SANDEEP SHARMA

body2021
JUDGMENT : Sandeep Sharma, J. 1. Instant appeal filed under Section 30 of the Employee Compensation Act, 1923, lays challenge to order dated 20.10.2012, passed by learned Commissioner, Employees Compensation, Court No. 1, Dehra, District Kangra, H.P., whereby learned court below while allowing the claim petition having been filed by petitioners/respondents herein (hereinafter to be called as "petitioners") under Section 4 of the Workmen's Compensation Act (for short 'Act') held them entitled for compensation to the tune of Rs. 2,54,160/- along with interest at the rate of 12% per annum, i.e. Rs. 1,52,496/- (total Rs. 4,06,656/-), along with further interest @ 12% per annum, in case aforesaid award amount is not deposited within a period of two months. 2. Precisely, the facts of the case, as emerge from the record are that the petitioners filed a petition under Section 4 of the Act, claiming therein compensation on account of death of one Sh. Kuldeep Singh being his legal representatives and dependents. Petitioners claimed before the court below that deceased Kuldeep Singh was engaged/employed by the respondent/appellant herein (hereinafter to be called as "respondent") for construction of his house in the year 2007 on daily wages of Rs. 100/- per day and on 12.09.2007, above-named deceased Kuldeep Singh buried under the debris of katcha wall of the house of the respondent. Though, aforesaid person was taken to hospital, but he was declared brought dead. Since deceased Kuldeep Singh was the sole bread earner of the family, the petitioners approached the Court below, seeking compensation to the tune of Rs. 3 lac. The respondent by way of filing reply refuted the aforesaid claim and claimed that he had not employed late Kuldeep Singh on 12.09.2007 for digging work, as alleged. He also denied that deceased Kuldeep Singh died after being buried under the debris of the katcha wall. On the basis of pleadings adduced on record by respective parties, following issues were framed on 16.08.2010:- (I) Whether the deceased Kuldip Singh was a workman with the respondent? (ii) Whether the petitioners are entitled for compensation as alleged? 3. Subsequently, learned Commissioner, Employees Compensation vide award dated 20.10.2012, held petitioners entitled to compensation to the tune of Rs. 2,54,160/- along with interest @ 12% per annum, i.e. Rs. 1,52,496/- (total Rs. (ii) Whether the petitioners are entitled for compensation as alleged? 3. Subsequently, learned Commissioner, Employees Compensation vide award dated 20.10.2012, held petitioners entitled to compensation to the tune of Rs. 2,54,160/- along with interest @ 12% per annum, i.e. Rs. 1,52,496/- (total Rs. 4,06,656/-) and specifically ordered that in case aforesaid amount is not paid within a period of two months, the respondent shall be further liable to pay interest @ 12% per annum on the account of compensation as well as interest calculated thereupon. In the aforesaid background, the respondent has approached this Court in the instant proceedings, praying therein to dismiss the claim of the petitioners after setting aside the award dated 20.10.2021 impugned in the instant proceedings 4. Aforesaid appeal came to be admitted on the following substantial question of law:- "Whether learned Commissioner has misconstrued and misinterpreted the pleadings and evidence in returning the findings that Kuldip Singh was a workman under the Employee's Compensation Act?" 5. Having heard learned counsel representing the parties and perused the pleadings as well as evidence adduced on record by respective parties, this Court finds that precise grouse of the appellant/respondent is that court below has erred while treating deceased Kuldeep Singh as a workman under Employee's Compensation Act, 1923. Mr. K.S. Banyal, learned Senior Counsel representing the appellant, vehemently argued that as per definition of 'workman' under Section 2(1)(n) of the Act, "workman" would mean "person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business". He further argued that as per own case set up by respondents, deceased Kuldeep Singh was engaged on daily wages for doing work of casual nature and as such, he could not be termed as 'workman', hence, on this sole ground, claim petition ought to have been dismissed. 6. However, having carefully perused the definition of 'workman' as provided under Section 2(1)(n) of the Act, this Court finds that words "other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business" stand omitted by Amendment Act 2000 w.e.f. 08.12.2000, whereafter 'workman's definition came to be enlarged and person employed in any such capacity as is specified in Schedule-II, is to be termed as workman. As on 12.09.2007, when alleged incident took place, definition of 'workman' as given in Section 2(1)(n) of the Act, reads as under:- "(n) 'workman' means any person who is- (i) .................................................. (ia) (a)......................................... (b)......................................... (c)......................................... (c)......................................... (ii) employed in any such capacity as is specified in Scheduled II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing, but does not include any person working in the capacity of a member of the Armed Forces of the Union; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependants or any of them." 7. Similarly, careful perusal of Schedule-II, para (viii) of the Act, ibid, clearly provides that person employed in the construction, maintenance, repair or demolition of any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof, shall be a workman within the Act, ibid. 8. There is no dispute that vide amendment Act, 2000, definition of 'workman' came to be amended whereby words "other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business" were deleted, meaning thereby at the time of alleged incident, deceased Kuldeep Singh was a workman and as such, respondents being his LRs/dependents rightly filed petition under Section 4 of the Workmen's Compensation Act and it cannot be said that Court below has misconstrued and misinterpreted the provisions of Section 2(1)(n) of the Act. Hence, no illegality and infirmity can be said to have been committed by court below while passing impugned award, which otherwise appears to be based upon appropriate appreciation of evidence as well as law. Substantial question of law is, thus, answered accordingly. 9. Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegality and infirmity in the impugned order dated 20.10.2012 and same is upheld. Present appeal being devoid of merit, fails and is dismissed accordingly. Substantial question of law is, thus, answered accordingly. 9. Consequently, in view of the detailed discussion made hereinabove, this Court finds no illegality and infirmity in the impugned order dated 20.10.2012 and same is upheld. Present appeal being devoid of merit, fails and is dismissed accordingly. Needless to say, court below would release amount deposited by the respondent to the petitioners on their filing formal application, by remitting the same in their saving bank accounts, details whereof shall be provided within a period of two weeks. Pending applications, if any, also stand disposed of.