Bhagat Singh vs Sadhu Singh

S.S. Sudhalkar, J.—This appeal raises out of the award of the Commissioner under the Workmen''s Compensation Act (hereinafter referred

to as ""the Act"") dated 8.12-1997. Appellants are the parents of the deceased Amar Singh, who was going in a Gypsy driven by one Rajinder

Singh on 2.10.1987, when it met with an accident which proved to be fatal to Amar Singh. It is the case of the appellants that the deceased was

going to Talwara Hydel Project site where the work of respondent No. 1 was going on. Respondent No. 1 is the company and respondent No.2

is the Managing Director of the Company. The Gypsy earlier belonged to the respondents but it was sold to M/s. R.C. Saw Mills. The driver

Rajinder Singh was earlier in the service of respondent No. 1. When Gypsy was sold to M/s. R.C. Saw Mills has services were also taken over by

the said Mill. The contention of the appellants is that deceased was going in the Gypsy at the time of accident as a workman of the respondents for

the work of the respondents under the employment of respondents.

Respondents vide their written statement, admitted that deceased Amar Singh was in their employment as aDriver at the time of accident. The

appellants have contended in their petition that Amar Singh was under the employment of respondents for 24 hours. This contention has been

denied. It has further stated in the written statement that at the time of accident, Amar Singh was not performing any duty of the respondent and it

was Dussehra day and he was enjoying festival with one Rajinder Singh (Driver of Gypsy) who was his friend and travelled in Gypsy on his own

accord. The Commissioner had earlier dismissed the petition and the appellants had filed an appeal being FAO No. 983 of 1996. This Court at the

time of hearing the appeal found that Rajinder Singh was summoned (as a witness) was from the zimni orders, it was not found that he was given

up as a witness, still he was not examined. This court found that Rajinder Singh could have been examined and he would have proved as to for and

what purpose Amar Singh was going in the Gypsy towards Hydel Project. It is also observed by this Court in the judgment that the appellants

wanted the respondents to produce the service record of Amar Singh, but they objected to it and declined to produce the same on one pretext or

the other and if the record would have been produced by the respondents, position would have been cleared whether Amar Singh was their

employee for 24 hours or not. It is also observed by this Court that the Commissioner had not considered both these aspects but has chosen to

dismiss the petition without affording reasonable opportunity and assistance to the appellants. This Court found it proper to remand the case to the

Commissioner to examine Rajinder Singh as a witness and to compel the respondents to produce the service record of deceased Amar Singh.

Consequently, the case was remanded to the court of Commissioner with direction to summon Rajinder Singh to record his statement and also to

direct the respondents to produce service record of Amar Singh and to decide the petition afresh. This judgment was delivered by this Court on

5.5.1997.

Witness Rajinder Singh has not helped the appellants and he has stated that he did not know that on 2.10.1997 he along with Amar Singh were

going towards Talwara Hydel in the Gypsy bearing registration No. DDI 7728. In the cross-examination he has stated that on the day of Dussehra,

he did not travel with Amar Singh. This witness has also given his complaint to the Police on the basis of which DDR was recorded on 3.10.1987.

It is mark ""A"". The case of the appellants is mentioned by the witness in the DDR though not supported by him in his deposition. Conclusion

cannot be drawn by relying on the facts stated in the D.D.R. only. However, D.D.R. shows that this witness is not telling the truth.

Witness for the respondents is Darshan Singh. He has deposed that the record of the company has been destroyed in the floods of July, 1993,

lie was Administrative Assistant of the respondent-Company. He has not stated that the deceased Amar Singh was not sent on duty of the

respondent-Company at the time of accident or that he was not going for any work of the respondent- Company. Respondents could have led

evidence to that effect but they have not done so. This being the position, there is no reason to disbelieve the stand of the appellants that deceased

was going on duty at the time of accident. Therefore, the finding of the Labour Commissioner that the deceased did not die during the course of

employment, cannot be accepted. The witness of the respondents namely Darshan Singh had been shown Ex.P/A in his examination-in-chief. He

has stated that letter was issued by Project Manager to M/s. Sadhu Singh and Co. The letter Ex.P/A written by the Project Manager to the

Commissioner on 4.8.1997 mentions that the documents/records relating to this case were destroyed completely during the floods of July, 1997 as

their site office was completely inundated by floor water. It is therefore, clear that the author of the letter and the witness examined for the same are

different. However, in the cross-examination, the statement of this witness that record has been destroyed could not be shattered and, therefore, it

has to be accepted. But even accepting this position that the record was destroyed, respondents could have led evidence to show the duty of the

deceased and the deceased was not sent for the work of the Company as alleged, at the time of accident. This is not done.

From the evidence as a whole, the appellants have been able to establish that the deceased died during the course of his employment. The

finding of the Labour Commissioner under the Act on this point, has therefore, to be set aside and the case is required to be remanded to the

learned Commissioner for computing the quantum of compensation to be paid to the appellants and respondent No. 3,

As a result, this appeal is partly allowed. The finding of the learned Commissioner that the deceased did not die during the course of

employment of the respondents is set aside. The case is remanded to the learned Commissioner for computing compensation which can be paid to

the appellant and respondent No. 3. The learned Commissioner shall permit the parties to lead further evidence if they so desire.

Appeal partly allowed.