Delhi High Court
Mr. Maman Chand And Anr. vs Deputy Labour Commissioner And Anr. on 29 January, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Appellants are aggrieved by the order dated 4.10.05 passed by the Commissioner Workman's Compensation, Delhi.
2. Vide impugned order dated 4.10.05 learned Commissioner has dismissed an application filed by the appellants under Workmen Compensation Act, 1923 seeking compensation on account of death of Sh. Rakesh Kumar (hereinafter referred to as the deceased).
3. In the application for compensation filed by the appellants under Section 10 of the Workmen Compensation Act it was inter-alia averred that:
A Appellant No. 1 Maman Chand is the father of the deceased and appellant No. 2 Leelawati is the mother of the deceased.
B Deceased died on 20.03.96 (the date has been wrongly mentioned as 30.03.96 in the application) due to an accident which occurred during the course of his employment with the shop 'Billa Steel Works' (hereinafter referred to as the Shop) and that the accident resulting in death of the deceased was caused due to the owner of the Shop Mr. Ramesh Kumar Billa (respondent).
C The Shop was engaged in the business of welding. D Deceased was working as a welder in the Shop at a salary of Rs. 1800/- per month.
E The welding set provided to the deceased by the Shop was defective.
F On various occasions deceased informed respondent Ramesh Kumar about the defect in the welding set and asked him to rectify the said defect.
G Respondent did not pay any heed to the request of the deceased.
H On 20.03.96 deceased was directed to work at the premises bearing No. 1/33, Sunder Vihar, Delhi.
I On said date deceased died in the afore-noted premises during the course of his employment with the Shop because of an accident which had occurred due to the defective welding set provided to the deceased by the Shop.
J Deceased was aged 21 years at the time of his death.
K Family of the deceased consisted of his parents i.e. the appellants, two married and two unmarried sisters.
L Deceased was the sole bread earner of the family and thus the family was dependent upon the earnings of the deceased.
4. On receiving the application for compensation filed by the appellants respondent Ramesh Kumar informed the learned Commissioner that the owner of the Shop is his father Om Prakash and that he has no concern whatsoever with the said Shop.
5. Accordingly application for compensation was amended and Om Prakash was imp leaded as respondent in place of Ramesh Kumar.
6. Om Prakash filed his written statement wherein it was emphatically asserted that:
A Deceased did not die during the course of his employment with the Shop.
B Deceased was never employed in the Shop.
C Defective welding set which was the cause of the death of the deceased does not belong to Om Prakash or the Shop.
7. It is relevant to note para 14 of the written statement which is being quoted herein-under:
14. That para 14 of the claim petition is wrong and denied. It is wrong to say that the said Rakesh Kumar was the only bread earner for the claimant and family members. It is submitted that both the claimants/petitioners are working in Horticultural department in DDA Division III, Sub Division-I, at B-2/B, Janakpuri, New Delhi and are getting more than Rs. 3000/- per month. It is a matter of record that both the claimants aged about 55 years and 50 years respectively. It is denied for want of knowledge that both the claimants are having four daughters. It is wrong to say that the claimants and their daughters were dependent upon the deceased.
8. In the replication filed to the written statement of Om Prakash appellants reiterated that the deceased was employed in the Shop. That the deceased died on 20.03.96 at the premises bearing No. 1/33, Sunder Vihar, Delhi. That the death of the deceased occurred during the course of his employment with the Shop and that the cause of the death of the deceased was defective welding set provided to the deceased by the Shop. In reply to the para 14 of the written statement contents whereof has been noted in para 7 above appellants averred as under:
14. Para No. 14 of the claim petition is right to our knowledge that it is truly to say that Rakesh Kumar was the only bread earner for the claimant as family member. It is matter of record that both the claimants are aged about 55 or 60 years respectively, and it is further truly to say that we are not concerned about the family members of the claimant that who is not earner and who is not this only a claim case which is pending before this Hon'ble court for compensation, and the court may decide on merits.
9. During the pendency of the application for compensation, Sh. Om Prakash died and his legal representatives i.e. his two sons Ramesh Kumar Billa and Praveen were substituted as respondent No. 1 and respondent No. 2 respectively.
10. On behalf of the appellants appellant No. 1 Maman Chand (father of the deceased), one Mr. Nabab Singh and one Mr. Ved Ram who were the neighborers of the father of the deceased were examined as CW-1, PW-2 and PW-3 respectively.
11. Maman Chand (appellant No. 1) tendered his examination-in-chief by way of an affidavit which was exhibited as Ex. CW-1/A. In the affidavit Ex.CW- 1/A appellant deposed on the lines of the pleadings filed by him. He again reiterated that the death of the deceased had taken place at the premises bearing No. 1/33, Sunder Vihar, Delhi.
12. Along with the affidavit Ex.CW-1/A appellant No. 1 produced true copies of four documents namely, FIR bearing No. 214/96, Post-mortem report of the deceased, statement of one Mr.Kalicharan and report prepared by one Mr.RajBir Singh, Sub-Inspector.
13. The true copy of the statement of one Mr. Kalicharan dated 20.03.96 is exhibited as Ex. CW-1/3. In the said statement allegedly made by one Mr. Kalicharan it has been stated that he was working as a chowkidar in the premises bearing No. 1/33, Sunder Vihar, Delhi. That the owner of the said premises was Mr. Rahul Duggal. That on 20.03.96 at about 10 AM one Mr. Ramesh Kumar who was owner of a shop situated in Asha Park and who had contracted to do welding work in the said premises brought the deceased to the said premises. That Ramesh Kumar directed the deceased to do welding work in the said premises. That deceased asked Ramesh Kumar to check electricity wires, switches etc. That Ramesh Kumar told the deceased that he had checked everything and asked him to complete the work as soon as possible. That thereafter Ramesh Kumar left the premises and deceased started the welding work. That around 1.30 PM deceased received electric shock while working on the welding set. That owner of the premises Rahul Duggal took the deceased to the hospital. That the accident in question occurred due to the negligence and carelessness of Ramesh Kumar.
14. On the basis of the afore-noted statement allegedly made by Kalicharan, Sub-Inspector prepared a report, true copy of which is exhibited as Ex. CW-1/4.
15. On the basis of afore-noted two documents FIR bearing No. 214/96 under Section 304A IPC was registered against Ramesh Kumar (respondent No. 1), true copy of which is exhibited as Ex. CW-1/1.
16. Post-mortem report of the deceased is exhibited as Ex. CW-1/2. The report records that the 'cause of death due to electrocution cannot be ruled out'.
17. In his cross-examination appellant No. 1 Maman Chand deposed as under:
I was employed in DDA in Horticulture Deptt. I was getting salary of Rs. 3,000.- p.m. My wife was employed with Horticulture Deptt. She was also getting Rs. 3,000/- approx. as salary.
18. When questioned about the wife of the deceased appellant No. 1 deposed as under:
The name of my son is Rakesh Kumar. My son Rakesh Kumar was got married in Pashhor. The name of wife is Smt. Gulshan. I do not know the place where the wife of my son is residing but she is residing somewhere in Hissar District.
19. It is most relevant to note that neither in the pleadings (application for compensation and replication) nor in the evidence (affidavit Ex. CW-1/A) appellants have disclosed that they were employed or that the deceased was married. The version set up by the appellants that the family of the deceased consisted of appellants and four sisters and that the deceased was the sole bread earner of the family is thus contrary to the actual facts.
20. When questioned about the particulars of the premises where the deceased had died and its owner appellant No. 1 deposed as under:
My son had expired in a Kothi. That Kothi was situated in Paschim Vihar. I do not know the number, pocket, Block and Sector of Kothi. I never visited the said Kothi. (Vol. I visited the Kothi on the day when the death taken place). The place of occurrence of Kothi is 5-7 K.M. Away from my house. I did not met with the owner of the Kothi. I have not any talked with the owner of the Kothi even I do not know the name of the owner of the Kothi.... A case was registered by the Police after the death of my son but the case was not prepared that my son was died in Kothi. I do not know whether any case was registered against the owner of the Kothi. I have not enquired from the owner of the Kothi whether he has entered into any agreement with any person to get the welding job done in his kothi.
21. It is most interesting to note that the appellant No. 1 deposed that he had no knowledge about the number etc. of the premises/kothi where the deceased died. While in the pleadings and affidavit Ex.CW-1/A appellants have categorically stated that the death of the deceased had taken place at the premises bearing No. 1/33, Sunder Vihar, Delhi.
22. This glaring defect in the testimony of appellant No. 1 is surely not a result of lapse in the memory of appellant No. 1.
23. Deceased died on 20.3.96. Claim petition was filed on 2.7.96. Replication was filed on 24.3.99. Affidavit Ex. CW-1/A was filed on 27.2.03. Cross-examination of appellant No. 1 was conducted on 27.09.04. If appellant No. 1 could remember the particulars of the premises for 7 years i.e. from the year 1996 to 2003 there is no reason why he would suddenly forget the same in the eighth year i.e. year 2004
24. It is further relevant to note following portion of the cross- examination of appellant No. 1:
My son was taken to hospital by Mr. Billa. It is wrong to suggest that my son was taken to the hospital by the owner of the Kothi.
25. Naqab Singh PW-2 and Ved Ram PW-3 tendered their examination- in-chief by way of affidavits which were exhibited as Ex. PW-2/A and Ex. PW-3/A respectively.
26. Affidavits Ex.PW-2/A and Ex.PW-3/A are verbatim copies of each other. Both the witnesses have deposed that they very well knew the deceased and respondent No. 1 Ramesh Kumar. That the deceased was employed as a welder in the shop of Ramesh Kumar. That the deceased died due to an accident which occurred during the course of his employment in the shop. That the cause of the death of the deceased was the defective welding set provided to the deceased by Ramesh Kumar. That the deceased regularly used to make complaints to Ramesh Kumar regarding the defect in the welding set.
27. It is relevant to note following portion of the cross- examination of Naqab Singh PW-2:
I know Sh. Maman Chand since the time of birth since both are the residents of the same village. Maman Chand was having two sons and both of them have expired. I do not know the name of the eldest son of Maman Chand and name of youngest son is Rakesh Kumar who complaint case is pending before this Hon'ble Court.... I do not know the house number of Maman and I do not know the name of father of Maman nor the name of the wife. The shop of management is situated at Asha Park. But I do not know the number of the shop but situated at Main Road of Asha Park. I do not know the shop bears any name plate or not. I do not know the number of persons employed with the management but this Rakesh was employed with the management/opp. Party. I do not know the size of the shop. I do not know the adjoining shop of the management. I usually visit the shop since it is situated at the main road.... I have heard the deceased died while operating the welding machine. I came to know when the deceased was taken to the burial ground for cremation at that time I came to know about the death of the deceased of Rakesh Kumar while operating the machine of the opp. Party. I do not know where the opp. Party had taken the deceased Rakesh Kumar for operating the welding machine. I attended the cremation of deceased Rakesh Kumar. I do not know the place where the deceased Rakesh had expired while operating the welding machine. I do not know the time of the death of Rakesh Kumar.
28. It is relevant to note following portion of the cross- examination of Ved Ram PW-3:
My house is situated in between the house of one Bihari and Maman Chand. I do not know the house number of Maman Chand. That the deceased Rakesh was working as a welder and he was doing the work welding at Fateh Nagar. He used to work with Billa. He used to say that I am working with Sh. Billa who is the opposite party.... I do not know the distance of working place of the deceased. I never visited the place where the deceased Rakesh was working. I do not know the type of welding works. I do not know the Billa. I do not know the date of the death of the deceased. I do not know how the death of deceased Rakesh takes place. Whenever I asked the deceased Rakesh about his nature of job, he used to tell me that I am doing the work of welding with Billa.... That the Maman and his wife were employed at the time of death of her younger son. I do not know the place of working of deceased Rakesh.
29. On behalf of the respondents Ramesh Kumar Billa was examined. He reiterated that the deceased was never employed in the Shop. That the death of deceased did not occur during the course of his employment with the Shop.
30. Vide impugned order dated 4.10.05 learned Commissioner dismissed the application for compensation filed by the appellants because of following reasons:
I No evidence such as appointment letter, identity card, salary/wage register etc has been produced by the appellants to establish that the deceased was employed in the Shop.
II Noting the contradictions in the testimonies of PW-2 and PW-3 the learned Commissioner had rejected their evidence.
III Appellant No. 1 in his testimony as CW-1 made contradictory statements.
IV Appellants concealed certain facts which were very material and important for proper adjudication of the case.
31. Aggrieved by the impugned order dated 4.10.05 appellants have filed the present appeal under Section 30 of the Workmen Compensation Act, 1923.
32. In order to claim compensation under the Workmen Compensation Act, 1923 it is essential that:
I Injured/deceased workman must have been employed with the person from whom compensation has been claimed; and II Injury/death of the workman must have occurred during the course of his employment; and III In case of deceased workman, only those deceased legal representatives of the deceased workman are entitled to get compensation who are 'dependant' within the meaning of Section 2(d) of the Workmen Compensation Act, 1923.
33. In petty and unorganized businesses the employer neither issues any appointment letter to its employees nor do they maintain any record such as attendance register, wage register etc. Thus I give no credence to said aspects which have been unnecessarily highlighted by the Commissioner Workmen's Compensation.
34. In the instant case best available evidence by means of which appellants could have proved the factum of employment of the deceased with the Shop was the testimony of the owner of the premises bearing No. 1/33, Sunder Vihar, Delhi.
35. If version set up by the appellants was indeed correct the owner of the premises would have deposed owner of the Shop had contracted to do the welding work at the premises which in turn would have established that the deceased was employed in the Shop.
36. From the testimony of appellant No. 1 contents whereof has been noted in para 20 above it is evident that no efforts whatsoever were made by the appellants to either summon the owner or to make him testify before the learned Commissioner. Further even the chowkidar of the house the maker of Ex. CW-1/3 has not been examined.
37. In the decision reported as Sriram Industrial Enterprises Ltd. v. Mahak Singh and Ors. case of the respondents was that although they had worked continuously from the date of their appointment for more that 240 days in a calendar year, appellant had illegally retrenched them from service in violation of the provisions of Section 6N of the UP Industrial Disputes Act, 1947. The dispute relating to retrenchment of the respondents was referred by the State Government to the Industrial Disputes Tribunal under Section 4K of the Act to determine as to whether the termination of the services of the respondents by the appellant was just and/or illegal. Appellant contended that the services of the respondents were never terminated since none of them had worked for 240 days in the last calendar 12 months immediately preceding alleged date of termination. Respondents requested the appellant to produce certain documents in its custody namely Attendance Register, Payment of Bonus Register and various other documents relating to the engagement of the respondents as workmen under it. Appellant failed to produce afore-noted documents. The Tribunal did not lay any importance to the non-production of the documents asked for on the ground that the petitioner did not keep such record relating to the temporary hands and relied on the documents that had been produced to come to a finding that the workmen had not put in 240 days of service in a calendar year preceding the termination of their services. Respondents assailed the awards by way of filing writ petitions in the High Court. Drawing an adverse inference against the petitioner herein for non- production of the documents in its possession and holding that the petitioner had failed to discharge the onus and disprove the respondent's claim, the High Court held that under the circumstances the Tribunal should have drawn an adverse presumption under Section 114 Illustration (g) of the Indian Evidence Act, 1872 against the petitioner. Taking further note of the expression "continuous service" under Section 2(g) of the U.P. Act, the High Court found that the termination of service of the workmen was in violation of Section 6N of the aforesaid Act. Aggrieved by the decision of the High Court appellant filed special leave petition before the Supreme Court and contended that the High Court was wrong in drawing an adverse inference against them. After considering the case in its entirety Supreme Court held that best evidence having been withheld by the appellant the High Court was entitled to draw such adverse inference against them.
38. In the decisions reported as Iddar v. Aabida and Ors. and Rama Paswan and Ors. v. State of Jharkhand 2007 Cri LJ 2750 the Supreme Court has held that in weighing evidence, the Court can take note of the fact that the best available evidence has not been given and can draw an adverse inference.
39. The fact that owner of the premises where the deceased died was not got examined by the appellants entitles this court to draw an adverse inference against the appellants, more so when at the criminal trial the accused were acquitted for the offence under Section 304A I.P.C.
40. The view taken by the learned Commissioner that PW-2 and PW-3 appears to be tutored witnesses is correct because of following reasons:
I. PW-2 had deposed that he knows Maman Chand appellant No. 1 since his birth as they were residents of the same village. Yet he pleaded ignorance when asked about the names of the father, elder son, wife of Maman Chand . He even pleaded ignorance about the house No. of Maman Chand.
II. Though PW-2 deposed that he visited the Shop number of times yet pleaded ignorance when questioned about the size, description of the shop.
III. PW-2 deposed that he heard that deceased died while operating the welding machine belonging to the Shop. Hearsay evidence is not permissible under the Evidence Act. In such circumstances it cannot be said that PW- 2 proved that the deceased died during the course of his employment with the Shop.
IV. PW-3 deposed that his house was situated between the house of one Bihari and Maman Chand. Yet he pleaded ignorance when questioned about the house No. of Maman Chand.
V. In the earlier portion of his cross-examination PW-3 has deposed that deceased used to work with Billa i.e. respondent No. 1. However in the later portion of the cross-examination he deposed that he did not know any person by the name of Billa.
VI. PW-3 in his affidavit Ex.PW-3/A deposed that place of working of respondent No. 1 is just half Kilometer away from the house of the deceased. In his cross-examination he deposed that he neither knows nor has ever visited the place of working of the deceased. When PW-3 has never visited the place of working of the deceased, then how come he was able to depose that place of working of the deceased was just half kilometer away from his house remains a mystery?
VII. PW-3 in his cross-examination has categorically deposed that he has no knowledge about the fact that as to how deceased had died.
41. Learned Counsel for the appellants contended that statement of Kalicharan Ex. CW-1/3 clearly established that the deceased was employed in the Shop and that his death occurred during the course of his employment with the Shop.
42. This aspect of the case has been dealt by the learned Commissioner. As regards the said issue learned Commissioner has held as under:
The claimant have also relied upon the contents of the FIR in support of their claim, however, same can also be said to be in any favor of the claimants for the reasons that firstly the respondent has been acquitted in the criminal case pertaining to the said FIR and a copy of the said judgment has been filed by the respondent before this court. On perusal of the judgment of the learned M.M. I find that there was no incriminating evidence against the respondent as not even one witness appeared before the criminal court to depose against the respondent, not even Kalicharan at whose instance/complaint the FIR was registered by the concerned police officials. The said chowkidar has not been produced before this court by the claimants and thus in absence of any reliable proof/document I find no merit in the submissions of the claimants regarding the existence of the employer-employee relationship.
43. I find no reasons to disagree with the view taken by the learned Commissioner.
44. The appellants first time in the present appeal contended that the respondents have threatened Kalicharan due to which he refused to testify in the proceedings before the Commissioner. The fact that this contention was not raised before the learned Commissioner probablizes that this contention is an after-thought.
45. Section 2(d) of the Workmen Compensation Act, 1923 reads as under:
(d) "dependent" means any of the following relatives of a deceased workman, namely: (i) a widow, a minor legitimate or adopted son, and unmarried legitimate or adopted daughter, or a widowed mother; and
(ii) if wholly dependent on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm;
(iii) if wholly or in part dependent on the earnings of the workman at the time of his death, (a) a widower,
(b) a parent other than a widowed mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted if married and a minor or if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law,
(f) a minor child of a pre-deceased son,
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grandparent if no parent of the workman is alive.
Explanation: For the purposes of Sub-clause (ii) and items (f) and (g) of Sub-clause (iii), references to a son, daughter or child include an adopted son, daughter or child respectively;
46. A reading of Section 2(d) clearly shows that the parents of a deceased workman are entitled to get compensation only when they are in wholly or in part dependent upon the earnings of the deceased workman.
47. The fact that the appellants tried to hide that they were employed and were earning about Rs. 3,000/- per month at the time of the death of the deceased and that deceased was married strongly suggests that the deceased was living separately from the appellants and that deceased was not giving any amount from his earnings to the appellants.
48. As per the appellants the salary of the deceased at the time of his death was Rs. 1,800/- per month. Whereas appellants were earning at least Rs. 6,000/- per month at the time of the death of the deceased. The fact that the deceased had only Rs. 1,800/- per month to maintain himself and his wife while his parents i.e. the appellant had Rs. 6,000/- per month at their disposal also leads to an inference that the deceased was not paying any amount from his earnings to the appellants.
49. The circumstances of the case suggest that the appellants heard some rumours that the deceased was employed with the Shop and thus tried to obtain compensation from the owners of the Shop.
50. I find no merits in the appeal.
51. Dismissed.
52. No costs.