Himachal Pradesh High Court
Smt. Krishna Devi & Others vs Harjit Singh And Another on 31 August, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 212 of 2018.
Reserved on :24.08.2018.
.
Decided on : 31st August, 2018.
Smt. Krishna Devi & Others .....Appellants.
Versus Harjit Singh and another ....Respondents.
Coram:
r to The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ajay Sharma, Advocate.
For Respondent No.1: Mr. C.D. Negi, Advocate.
For Respondent No.2: Mr. Parneet Gupta, Advocate.
Sureshwar Thakur, Judge.
The successors-in-interest/dependents, of, deceased Udham Singh, who uncontrovertedly, met his end, during, the course of his performing his employment as a driver, upon, the ill-fated truck bearing No.HP-25-1511, in sequel to the afore truck rolling down, from, the highway into 1 Whether reporters of the local papers may be allowed to see the judgment?
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a gorge, hence, assail through the instant appeal, the apt .
impugned verdict. His employer is impleaded in the apt petition, cast under the Employees Compensation Act, as respondent No.1, and, he does not controvert, the, factum of his engaging, the, deceased as a driver, upon, the afore truck.
The apt insurer also does not contest the factum of his issuing, vis-a-vis, respondent No.1, an apt insurance policy bearing Policy No. 36090131110200003412, not it contests, the, fastening of apposite indemnificatory liability, upon, it.
2. However, the contest reared before this Court, is, at the instance of the claimants/dependents, of, deceased Udham Singh, and, their contest is confined to the learned Commissioner, (a) not bearing in mind the efficacy of the testification rendered by one Krishna Devi, the widow of the deceased, wherein, she has rendered clear articulations qua her deceased husband, drawing, a sum of Rs.10,000/- per mensem as salary, from, his apt employment. (b) The learned counsel appearing for the appellants contends that the afore rendered testification, constituted the best ::: Downloaded on - 04/09/2018 21:53:50 :::HCHP ...3...
evidence in respect, of, the, per mensem salary, drawn, by .
deceased Udham Singh, from, his apt employment, (c) unless, the owner, who stepped into the witness box as RW-1, had, during course thereof, hence, proceeded to negate the efficacy thereof, comprised, in, his thereat producing the apt register of wages, as, enjoined to be statutorily maintained by him, under, the apt mandate, of, Section 13-A of the Payment of Wages Act, 1936, provisions whereof, stand extracted hereinafter:-
"13A. Maintenance of registers and records.--(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein."
He further submits that, unless, the counsel for the insurer, while holding the widow of the deceased, to, cross-
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examination, hence, had either confronted her with the apt .
records maintained, by respondent No.1, and, records whereof, were, in contemporaneity thereof, rather enjoined to be elicited by the counsel, for, the insurer, from the apt employer, hence, for his apt nugatory efforts, rather carrying force, (d) whereas, there being stark omission qua therewith,
(e) besides when even subsequent thereto, upon, the owner stepping into the witness box, his also failing to produce the apt records, as, enjoined to be statutory maintained by him,
(f) thereupon, the mere oral testification of the employer, for, hence repelling the efficacy of the testification rendered by the widow of the deceased, and, as appertain to the per mensem salary, drawn by the deceased, from, his apt employment, was, hence amenable to face rejection, whereas, meteing(s) of credence thereto, by, the learned Commissioner, is, contended to be grossly inapt.
3. This court has considered the aforesaid submission, and, finds immense force therein, given the widow of the deceased while stepping into the witness box as ::: Downloaded on - 04/09/2018 21:53:50 :::HCHP ...5...
PW-1, hers in her affidavit, as stood, tendered, during course .
thereof, and, stood marked as Ex. PW1/A, rather making echoings therein, qua, her deceased husband drawing, a, per mensem salary borne in a sum of Rs.10,000/-. Thereafter, the counsel for the insurer in contemporaneity, to his holding her to cross-examination, rather failed to ensure elicitations, from, respondent No.1, of apt records appertaining tot he aforesaid factum, nor when PW-1 was confronted therewith, for hence negating the efficacy of the afore echoings, qua the relevant factum probandum, as, made by her in her relevant examination-in-chief, (a) rather when even thereafter the counsel for the insurer omitted to elicit from RW-1, the apposite record, (b) nor when the former adduced the relevant records, though enjoined to be statutorily maintained by him, (c) besides his in his cross-examination by the counsel for the petitioner, rather acquiescing, vis-a-vis, suggestion(s) qua, the, per mensem wages reared by the deceased, from, the apt employment being constituted in a sum of Rs.10,000/-, (d) thereupon, the learned Commissioner ::: Downloaded on - 04/09/2018 21:53:50 :::HCHP ...6...
has falling into error in concluding qua the per mensem .
salary, of, the deceased, being confined in a sum of Rs.6000/-.
4. In coming to the aforesaid conclusion qua the statutory necessity of the employer to maintain, and, produce the records, with respect to the apt wages, defrayed by him to his employees, and, in case of omission, of, production thereof, before the Courts concerned, an, adverse inference being drawable against the owner, and, to a further conclusion qua thereupon, the, testifcation rendered by the dependents of the deceased, vis-a-vis, the per mensem salary of the latter, rather, warranting meteing of credence thereon, this Court is supported, by a judgment rendered by the Hon'ble Apex Court, in, a case titled as Jaya Biswal vs. IFFCO Toko General Insurance Co. Ltd, reported in (2016)11 SCC 201, the relevant paragraph No. 29 whereof, stand extracted hereinafter:-
"29. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under:::: Downloaded on - 04/09/2018 21:53:50 :::HCHP
...7...
"13-A. Maintenance of registers and records- (1) Every .
employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein."
From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it.
Consequently, the per mensem salary of the deceased, is, computed as Rs.10,000/-, hence, the comepnsation amount is determined as under:-
Age of the deceased at the time of 60 years accident Factors to be applied 117.41 Income of the deceased at the time of Rs.10,000/- per month accident Compensation amount calculated Rs.5000x117.41= Rs.5,87,050/-
Expenditure of Funeral Rs.5000/-
Total Compensation Rs. 5,87,050+5000= Rs.5,92,050/- (Rs.
Five Lacs ninety two thousand and fifty only) ::: Downloaded on - 04/09/2018 21:53:50 :::HCHP ...8...
.
5. For the reasons recorded hereinabove, the instant appeal is allowed and the impugned award modified.
Accordingly, the claimants/dependents of the deceased are held entitled for a sum of Rs.5,92,050/-, as, compensation along with interest at the rate of 12% per annum, from, the date of filing of the petition till its realization. Since, the ill-
fated truck is insured with respondent No.2, hence, the later shall indemnify the insured qua the aforesaid amount of compensation. The amount of compensation shall be proportionally apportioned inter se the claimants as per rules.
All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 31 August, 2018.
st Judge.
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