Himachal Pradesh High Court
Sh. Anil Dogra vs Shri Anil Dogra And Others. Appeal No. ... on 3 September, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 3rd DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
FIRST APPEAL FROM ORDER No. 180 of 2012 &
FIRST APPEAL FROM ORDER No. 274 of 2012
1. FIRST APPEAL FROM ORDER No. 180 of 2012
Between:-
1. SH. ANIL DOGRA, S/O SH.
MEHAR CHAND DOGRA,
RESIDENT OF VILLAGE AND
P.O. TIURI, TEHSIL SADAR,
DISTRICT UNA, H.P.
2. SH. PARTAP CHAND
CHAUHAN, S/O SH. KUNDAN
LAL, RESIDENT OF VILLAGE
AND P.O. CHHUPAN, TEHSIL
ROHROO, DISTRICT SHIMLA,
H.P.
3. SH. LOHRI SINGH, S/O SH.
CHOPAL LAL, RESIDENT OF
VILLAGE KASHAMNI, P.O.
TIKKAR, TEHSIL ROHROO,
DISTRICT SHIMLA, H.P.
4. SH. KHAZAN SINGH, S/O SH.
KRISHAN CHAND, RESIDENT
OF VILLAGE AND P.O. SIDRON,
TEHSIL ROHROO, DISTRICT
SHIMLA, H.P.
5. SH. CHAMAN LAL, S/O SH.
DHANI RAM, RESIDENT OF
VILLAGE DOHAR, P.O. DOBA,
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TEHSIL SADAR, DISTRICT
BILASPUR, H.P.
6. SH. SAIN SINGH, S/O SH.
MOHINDER SINGH, RESIDENT
.
OF VILLAGE SALNA, P.O.
CHALNAIR VIA KOTKHAI,
DISTRICT SHIMLA, H.P.
ALL ARE PARTNERS OF FIRM
M/S ANIL KUMAR DOGRA &
COMPANY AT
KADRUN/BALAG, P.S. THEOG,
DISTRICT SHIMLA, H.P.
r MS. to
(BY SHRI R. K. GAUTAM, SENIOR
ADVOCATE, WITH
KAPOOR GAUTAM, ADVOCATE)
MEGHA
...APPELLANTS
AND
1. SMT. SHEELA DEVI, WD/O SH.
CHAMAN LAL
2. MASTER SANNI KUMAR, S/O
LATE SH. CHAMAN LAL
3. KUMARI SAPNA DEVI, D/O
LATE SH. CHAMAN LAL
4. SMT. SUNITA DEVI, MOTHER OF
LATE SH. CHAMAN LAL
RESPONDENTS NO. 2 AND 3
BEING MINORS THROUGH
THEIR MOTHER SMT. SHEELA
DEVI NATURAL GUARDIAN.
ALL ARE RESIDENTS OF
VILLAGE SAYAR BHASI, P.O.
DOBHA, TEHSIL SADAR,
DISTRICT BILASPUR, H.P.
....RESPONDENTS
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3
(BY SHRI T. S. CHAUHAN, ADVOCATE)
1. FIRST APPEAL FROM ORDER No. 274 of 2012
.
Between:-
1. SHEELA DEVI, WIDOW OF
LATE CHAMAN LAL
2. MASTER SANNI KUMAR, SON
OF LATE CHAMAN LAL
3. KUMARI SAPNA DEVI,
DAUGHTER OF LATE CHAMAN
LAL
4. SMT. SUNITA DEVI, MOTHER
OF LATE CHAMAN LAL,
APPELLANTS NO. 2 AND 3
THROUGH THEIR MOTHER
SHEELA DEVI, APPELLANT
NO. 1.
ALL RESIDENTS OF VILLAGE
SAYAR BHASI, POST OFFICE
DOBHA, TEHSIL SADAR,
DISTRICT BILASPUR,
HIMACHAL PRADESH.
...APPELLANTS
(BY SHRI T. S. CHAUHAN, ADVOCATE)
AND
1. SHRI ANIL DOGRA, SON OF
SHRI MEHAR CHAND DOGRA,
RESIDENT OF VILLAGE AND
POST OFICE TIURI, TEHSIL
SADAR, DISTRICT UNA,
HIMACHAL PRADESH.
2. SHRI PARTAP CHAND
CHAUHAN, SON OF SHRI
KUNDAN LAL, RESIDENT OF
VILLAGE AND POST OFFICE
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CHHUPARI, TEHSIL ROHROO,
DISTRICT SHIMLA, HIMACHAL
PRADESH.
3. SHRI LOHRI SINGH, SON OF
.
SHRI CHOPAL LAL, RESIDENT
OF VILLAGE KASHAMANI,
POST OFFICE TIKKAR, TEHSIL
ROHROO, DISTRICT SHIMLA,
HIMACHAL PRADESH.
4. SHRI KHAZAN SINGH, SON OF
SHRI KRISHAN CHAND,
RESIDENT OF VILLAGE & POST
OFFICE SIDROTI, TEHSIL
ROHROO, DISTRICT SHIMLA,
HIMACHAL PRADESH. r
5. SHRI CHAMAN LAL, SON OF
SHRI DHANI RAM, RESIDENT
OF VILLAGE DEHAR, POST
OFFICE DOBA, TEHSIL SADAR,
DISTRICT BILASPUR,
HIMACHAL PRADESH.
6. SHRI SAIN SINGH, SON OF
SHRI MOHINDER SINGH,
RESIDENT OF VILLAGE SALN
AT KADRUN/BALAG, POST
OFFICE THEOG, DISTRICT
SHIMLA, HIMACHAL PRADESH.
....RESPONDENTS
(BY SHRI R.K. GAUTAM, SENIOR
ADVOCATE, WITH MS. MEGHA
KAPOOR GAUTAM, ADVOCATE)
Reserved on: 14.07.2021
___________________________________________________________
These appeals coming on for pronouncement of judgment this day,
the Court passed the following:
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JUDGMENT
.
Both these appeals are preferred against judgment, dated 29.02.2012, passed by the Court of learned Civil Judge (Senior Division), Bilaspur, H.P., exercising the powers of Commissioner under the Employees Compensation Act, 1923 in WC No. 4-2 of 2011/2005, titled as Smt. Sheela Devi and others Vs. Shri Anil Dogra and others. Appeal No. 180 of 2012 has been filed by the respondents before the learned Commissioner, whereas Appeal No. 274 of 2012 has been filed by the claimants.
2. Brief facts necessary for the adjudication of both these appeals are as under:-
Claimants filed a Petition under Section 22 of the Employees Compensation Act, 1923, inter alia, on the ground that late Shri Chaman Lal, husband of claimant No. 1 and father of claimants No. 2 to 4, was working as a Salesman in the wine shop of respondents, before the learned Commissioner, which was functioning under the name and style of M/s Anil Kumar Dogra and Company at Kadrun/Balag, Police Station Theog, District Shimla, H.P. Respondents in the Claim Petition were stated to be the proprietors of the said wine shop. In addition to the said wine shop, one more room was hired by the owners of the wine shop to store wine and deceased Chaman Lal alongwith another Salesman used to stay in that room and also used to watch and ward the wine property of the ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 6 respondents. On the night of 06.11.2002, when deceased Chaman Lal was sleeping in the said store room, fire broke out in the same and the wine bottles were gutted in fire. Deceased Chaman Lal also lost his life in the .
said incident. He was a young man 27 years of age. As per the claimants, he was the sole bread earner of the claimants at the time of his death and was being paid monthly salary to the tune of Rs.5,000/- per month.
Respondents were aware of the death of the deceased in the course of his employment, yet they did not comply with the provisions of the Workmen Compensation Act, thus, forcing the claimants to file the claim petition, vide which, they claimed compensation to the tune of Rs.10,00,000/- alongwith interest.
3. The claim petition was resisted by the respondents, inter alia, on the ground that there was no relationship of employer and employee between the deceased and the respondents. Respondents admitted that they were the proprietors of wine shop, but denied that Chaman Lal was working with them as a Salesman. As per them, they never engaged the services of Chaman Lal as a Salesman and the deceased might have been staying in the premises, which were gutted in fire, due to his acquaintance with other Salesmen, on account of which, the respondents were not liable to compensate the claimants as per the provisions of Workmen Compensation Act.
4. On the basis of pleadings of the parties, learned Commissioner framed the following issues:
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"1. Whether deceased Shri Chaman Lal was employee of the M/s Anil Kumar Dogra and Company and had died during the course of employment of M/s .
Anil Kumar Dogra and Company? OPA
2. If issue No. 1 is proved, what amount of compensation the petitioners are entitled and from whom? OPA
3. Whether this Court has no jurisdiction to hear and pursue the petition or not? OPR
4. Relief."
5. On the basis of the evidence led by the parties in support of their respective contentions, the issues were answered as under:-
"Issue No. 1: Yes.
Issue No. 2: The petitioners are entitled for the
recovery of Rs.4,33,820/- alongwith
12% interest.
Issue No. 3: No.
Relief: The petition is allowed as per
operative part of the judgment."
6. The claim petition was allowed by the learned Commissioner and the claimants were held entitled to recover an amount of Rs.4,33,820/- from the respondents alongwith interest @12% per annum after adjusting an amount of Rs.20,000/- in terms of the award. While arriving at the the said conclusion, learned Commissioner on the basis of evidence on record, held that Claimant Sheela Devi appeared in the witness box as PW-5 and deposed on oath that her late husband was working as a Salesman in the ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 8 wine shop in the year, 2002. She received a telephonic message from his working place that fire had broken out in the store near the wine shop where her husband was sleeping on the night of 06.11.2002 and he had died in the .
incident. Her husband was shifted to hospital where her father-in-law and other villagers went and from where, after conduct of the post mortem, the dead body was brought to the native place for cremation. She stated that the respondents were paying Rs.5000/- to the deceased as a salary and that the deceased was the sole bread earner from the family members. She also deposed that respondent No. 5 Shri Chaman Lal had paid an amount of Rs.25,000/- to her to perform the last rituals of her husband and except the said amount, no other amount was paid to her, as compensation. Learned Commissioner held that the claim was substantiated by the statement of PW-1-Shri Harnam Singh, the President of Gram Panchayat Balhag, Tehsil Theog, District Shimla, H.P., who deposed in the Court that in the year 2002, respondents were running a wine shop in his village Kadrun/Balag and deceased Chaman Lal was deputed as a Salesman in the said shop in the month of October, 2002 and fire broke out in the store room of wine shop on 06.11.2002. He deposed that it was brought to his knowledge in the morning on 07.11.2002 that the Salesman of the respondents Shri Chaman Lal had died in the fire which broke out. Similarly, Pardeep Kumar (PW-2), who was a resident of Village Kadrun/Balhag also deposed on oath that respondents were running a wine shop in their area ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 9 and Chaman Lal was engaged as a Salesman, who had died in the unfortunate incident.
7. While discussing the statement of respondent No. 5, who .
entered the witness box as RW-1, learned Commissioner observed that though this witness denied that the deceased was ever engaged by the respondents as a Salesman, yet he admitted the suggestion put to him that on 06.11.2002, when the fire broke in their wine shop, he alongwith Prsident of Gram Panchayat Rani Kotla and father of the deceased visited the site. He also admitted that he went with the father of the deceased to IGMC, Shimla for the conduct of post mortem and had paid money for the last rites of the deceased. Learned Commissioner also observed that though this witness stated that they had deputed some other Salesmen in the shop, but he did not disclose the name of any other Salesman, which proved that what this witness had stated in his examination-in-chief was not correct. Learned Commissioner also observed that no evidence was adduced on record by the respondents except the statement of RW-1 to prove that the deceased was not engaged as a Salesman. On these basis, it held that it stood proved on record that the deceased Chaman Lal was employed with the respondents as a Salesman. Learned Commissioner further held that there was on record the birth certificate of deceased as Ex. PW5/G, in terms whereof, the date of birth of the deceased was 25.03.1977 and as he died on 06.11.2002, the number of years completed by him when the date of incident occured came to 25 years. Learned Commissioner by relying upon ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 10 the provisions of Section 4 of The Employees Compensation Act, 1923 and by relying upon Clauses (a) and (b) thereof, assessed the wages of the deceased by deeming the same to be Rs.4,000/- per month and by applying .
the relevant factor of 216.91, it held the compensation to be Rs.4,33,820/-. It also ordered the payment of interest @12% per annum from the date of the incident, by further ordering that amount of Rs. 20,000/-, which already stood paid by the respondents, be adjusted towards Rs.25,000/-, as funeral expenses. The judgment so passed by the learned Commissioner has been assailed both by the claimants and the respondents.
8. I will first deal with the substantial question of law formulated in appeal No. 180 of 2012 filed by respondents/appellants. This appeal was admitted on the following substantial question of law:
"Whether the findings returned by the learned Commissioner that deceased was an employee of the appellants herein are perverse findings being contrary to the record?"
9. A perusal of the judgment passed by the learned Commissioner and the record demonstrates that the factum of the deceased being an employee of the respondents in the Claim Petition has been duly proved on record by the statement of PW-1-Shri Harnam Singh, who was the President of Gram Panchayat Balhag, Tehsil Theog, District Shimla, H.P as well as PW-2-Shri Pardeep Kumar, who was a local resident of Village Kadrun/Balhag. Both these witnesses have categorically and clearly stated ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 11 that respondents in the Claim Petition were running a wine shop under the name and style of M/s Anil Kumar Dogra and Company at Kadrun/Balag, Police Station Theog, District Shimla, H.P., in which deceased Chaman Lal .
was engaged as a Salesman in the month of October, 2002, who lost his life in a fire incident, which took place on the night of 06.11.2002 in the wine store room of the respondents. Claimant Sheela Devi, who entered the witness box as PW-5 has also proved this fact on record. A perusal of the cross-examinations of these witnesses demonstrates that the respondents have not been able to discredit the statements of these witnesses, nor it can be deciphered from the same that these witnesses had not deposed correctly before the Court. On the other hand, respondents produced only one witness, i.e., RW-1 (respondent No. 5-Chaman Lal), who in his cross- examination admitted the fact that he not only informed the father of the deceased of the incident, but accompanied him to the hospital and also paid an amount of Rs.25,000/- to the claimants, as funeral expenses. These facts have been taken note of and dealt with by the learned Commissioner in the judgment passed by him and it is on these basis that he had returned the finding that it stood proved on record the deceased was an employee of the respondents. In this view of the matter, it cannot be said that the findings returned by the learned Commissioner that the deceased was an employee of the appellants in FAO No. 180 of 2012 are perverse findings being contrary to the record. On the contrary, these findings are duly borne out from the record of the case. The substantial question of law is answered ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 12 accordingly and appeal No. 180 of 2012 is dismissed. Miscellaneous applications, if any, also stand disposed of.
FIRST APPEAL FROM ORDER No. 274 of 2012 .
10. This appeal was admitted on the following substantial question of law:
"Whether the learned Commissioner was justified in not imposing penalty under Section 4-A of the Workmen's Compensation Act?"
11. Section 4-A of the Workmen's Compensation Act, 1923, inter alia, envisages that where any employer is in default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank, as may be specified by the Central Government, on the amount due and if in his opinion, there is no justification for the delay, direct that the employer in addition to pay a further sum not exceeding fifty percent of such amount, by way of penalty, as may be assessed payable to the claimants.
12. In the case in hand, learned Commissioner, in his wisdom, issued a direction to the respondents to deposit the compensation amount alongwith 12% interest per annum within 30 days from the date of judgment ::: Downloaded on - 31/01/2022 23:00:32 :::CIS 13 and in the event of failure to do so, it ordered initiation of action under the provisions of Section 4-A of the Employees Compensation Act. This Court is of the considered view that at the time of passing of the judgment, learned .
Commissioner took a conscious decision not to impose penalty under Section 4-A of the Workmen's Compensation Act. That being the case, in the peculiar facts of the case, this Court does not intend to interfere with the findings so returned by the learned Commissioner, as this Court is of the view that the claimants have been compensated reasonably by the learned Commissioner. Substantial question of law is answered accordingly and the appeal stands disposed of. Miscellaneous applications, if any, also stand disposed of.
(Ajay Mohan Goel) Judge September 03, 2021 (bhupender) ::: Downloaded on - 31/01/2022 23:00:32 :::CIS