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MEWA LAL AND ANOTHER versus KAMLESH BAHADUR SINGH

High Court of Judicature at Allahabad

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Mewa Lal And Another v. Kamlesh Bahadur Singh - FIRST APPEAL FROM ORDER No. 1183 of 2001 [2005] RD-AH 1167 (28 April 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

In the High Court of Judicature at Allahabad.

...

                 First Appeal From Order No. 1183 of 2001.

Mewa lal and another  . . . . . . . . . . . . . . . . . .  . . . . . . . .  Appellants.

Versus

Kamlesh Bahadur Singh . . . . . . . . . . . . . . . . . . . . . .  . . . .Respondent.

 ---

Hon'ble Yatindra Singh,j.

Hon'ble R.K. Rastogi,J.

( Delivered by Hon'ble R.K.Rastogi,J.)

...

This is an appeal against judgment and order dated 12.6.2001 passed by Sri A,K. Singh, learned Commissioner, Workmen's Compensation, and Assistant Labour Commissioner, Allahabad in W.C. no. 46 of 1997, Mewa Lal and another Vs. Kamlesh Bahadur Singh.

2. The facts relevant  for disposal of this appeal are that the appellants moved an application under section 22 of the Workmen's Compensation Act  1923 before the Workmen's Compensation Commissioner with these allegations that the appellant no.2 Rakesh Kumar aged about 16 years  is son of the appellant no.1 Mewa Lal.  Rakesh Kumar was working  as a workman at the field and house of Kamlesh Bahadur Singh, respondent. On 28.4.1995 Rakesh Kumar was moving thrasher  at the field of Kamlesh Bahadur Singh and at that time right hand of Rakesh Kumar got fractured. F.I.R. of the incident was lodged by Mewa Lal at  police station Tharwai on 15.5.1995 at 8.30 A.M.  Rakesh Kumar was immediately taken to Swarup Rani Hospital on 28.4.1995 for treatment of his injury. His treatment in that hospital continued for a long time  and his treatment is still going on. He has become disabled on account of the said injury. He was earning a salary of Rs.1,500/- per month from the opposite party. Rakesh Kumar was the only earning member in the family of the appellants and after his disability, entire family of the appellants has become unable to earn their livelihood. Under the provisions of the Workmen's Compensation Act the appellant no.2 is entitled to Rs.2,05,686/- as compensation for the above permanent disability. The appellants asked the opposite party several times to give the above amount of compensation but he did not give any amount. Hence, the appellants are also entitled to  recover 50% penalty under section 4 of the above Act  and also 15% per annum interest on the amount. They claimed Rs.2,05,686 as  compensation + 50% penalty + 15% per annum interest from the date of filing of the petition till the date of actual recovery + Rs.5,000/- as legal expenses.

3. The opposite party contested the case. He pleaded that he is a small farmer. He has got no thrasher and no mechanical instruments for doing agricultural work. He has got no electric connection, power engine or diesel engine nor any tractor. The appellant no.2 was never employed  by him nor he was being paid any salary. The appellant no.2 has got three more brothers and appellant no.1 also earns his livelihood. The appellants are  neighbours of the opposite party,  and on account of enmity of the village this false case has been filed.

4. The appellants also filed a replication in which they have supported the allegations made in their original petition. They also filed a copy of Jot Chakbandi to show that the opposite party was an agriculturist. They also filed a copy of the injury report dated 28.4.1995 of appellant no.2 Rakesh Kumar and copy of handicapped certificate dated 20.8.1998 and also another certificate dated 10.9.1998.

5. The appellants produced Mewa Lal appellant no.1 as P.W.1 They also produced Rakesh Kumar appellant no. 2 as P.W.2. The opposite party Kamlesh Bahadur Singh examined himself as D.W.1.

6. The following issues were framed by the court below in this case:

(1)Whether Rakesh Kumar was employed as a workman by the opposite party and was working as such on 28.4.1995 and whether he received grievous injury from thrasher on the aforesaid date?

(2)Whether Rakesh Kumar has been permanently disabled due to above injury?

(3)Whether Rakesh Kumar was earning Rs.1,500/- per month as salary from Opposite Party Kamlesh Bahadur Singh?

(4)Whether Rakesh Kumar was entitled to recover compensation from Kamlesh Bahadur Singh? If so, to what amount?

(5)Other relief, if any?

7. The learned Workmen's Compensation Commissioner held on issue no.1 that the applicants have failed to prove that the applicant no.2 Rakesh Kumar had been employed by the opposite party as workman. In view of this findings, he held on the remaining issues that the applicant no.2 had not been permanently disabled during employment and he was also not  drawing Rs.1,500/- as salary and as such he was not entitled to any amount of compensation, and he, therefore, dismissed the petition. Aggrieved with that order, the applicants filed this appeal.

8. We have heard learned counsel for  both the parties and perused the record.

9. It has to be seen that under section 30(1) of the Workmen's Compensation Act an appeal lies on substantial questions of law only and the finding of facts cannot be challenged in the appeal. It was, however, contended by the learned counsel for the appellants that if a finding has been arrived at without considering the material evidence on record, it will be a substantial question of law. He also cited before us a ruling of Madhya Pradesh High Court  in the case of ''Smt. Mangala Ben Vs.Dilip Motwani and another' 1998(79) FLR. Page 806 in support of this contention. He further submitted that under the Workmen's Compensation Act burden to prove that the concerned person was not a workman is upon the employer. He contended that in view of the law laid down in the above ruling in the present case also it was for the employer, i.e. the opposite party to prove that the appellant no.2  was not a workman and since he had not produced reliable evidence in support of his allegation of denial, the learned Commissioner had erred in law by holding that the applicant no.2 was not a workman of the opposite party and so the finding recorded by him was perverse, and, therefore, the appeal should be allowed.

10. We have carefully considered the aforesaid submissions made by the learned counsel for the appellants and also perused the record. It has to be seen that in the present case the allegations of the appellants are that the opposite party was a big agriculturist and he had employed the appellant no. 2  for doing agriculture work at his field and on 28.4.1995 when the appellant no. 2 was working at the thrasher of the opposite party his right hand was entangled with the thrasher and so he received fracture.

11. The case of the opposite party is that  he is a small farmer and has got no agricultural land in his name and he himself is a labourer and  he has got no mechanical instruments for doing agricultural work nor he has got any thrasher. Here it has to be seen that the appellants have filed a copy of Jot Bahi to show the land of the opposite party. However, its perusal goes to show that the name of  the opposite party no where finds place in this  Jot Bahi. On the other hand, this Jot Bahi is in the name of Bhairo Bux Singh, Data Din Singh and Bhola Singh sons of Gayadin Singh. Data Din Singh is the name of the father of opposite party Kamalesh Bahadur Singh. Data Din Singh is still alive and as such at present there is no land in the name of the opposite party. It is also to be seen that data Din Singh has got two sons and so the entire land of Data Din Singh is not going to be inherited by Kamlesh Bahadur Singh alone. It is to be shared by his brother also. On the other hand the opposite party has filed a question and answer form issued by Assistant Consolidation Officer, Allahabad  certifying that there was no land entered in the name of  Kamlesh Bahadur Singh, the opposite party. Thus, this allegation is not proved that the opposite party has any agricultural land in his name.

12. It has also to be seen that as per the appellants' case appellant no.2  Rakesh Kumar received injury from the thrasher on 28.4.1995 but no F.I.R. of the incident was lodged soon thereafter. The F.I.R. was lodged for the first time on 15.5.1995 after the lapse of 17 days from the date of the incident. No explanation has been given from the side of the appellants as to why this delay was caused  in lodging the F.I.R. This delay in lodging the F.I.R. again creates serious doubt regarding  genuineness  of the appellants' case.

13. It is to be seen that in the ruling cited above by the learned counsel for the appellants the facts were that driver of car had died in an accident  while driving that car and owner of the car had taken a plea that the driver was not an employee but was his friend. The Workmen's  Compensation Commissioner had believed the above plea of the car owner  and had rejected the claim filed by the mother of the deceased. Under these circumstances, the Madhya Pradesh High Court  referring the definition of the workman  given  in section 2(1)(n) of the Act pointed out that for not treating a person as workman two conditions are required to be proved, namely, that his employment is of casual nature and he is not employed for the purpose of employer's trade or business, and the onus is on the employer to prove these conditions. The facts of the present case are quite different. In the above case, the deceased was admittedly driving a car of the owner and so the burden was upon the car owner to prove that he was not an employee nor a workman. In the present case  there is total denial  of the entire relationship. The appellants' allegation is that the appellant no.2 has been working at the field of the opposite party for doing agricultural work and while working at his thrasher his right hand was fractured. In the present case there is nothing on record to show that the appellant no. 2 had been ever working  at the field of the opposite party as a workman. On the other hand, the evidence produced by the appellants themselves goes to show that there is no land entered in the name of the opposite party but it is in the name of his father. The opposite party has also produced a certificate to this effect that there was no land entered in his name. When there was no land in the name of the opposite party there was no question of his getting any agricultural work done from a thrasher. In this case it is also to be seen that if the appellant no.2 had been employed by the opposite party to do the work at his field, the appellants could have produced one or two witnesses of the village to prove this allegation that they had seen Rakesh Kumar working at the field of the opposite party, but no such witness has been produced  by the appellants. On the other hand, there is  interested testimony of both the appellants only in support of the allegation and no independent witness has been produced. It is also to be seen that as per the statement of the appellant no.1  Rakesh Kumar had been working  as a workman at the field of Kamlesh Bahadur Singh for the last 1 ½  years from the date of  the incident. If that was so, some persons must have seen him doing work there, but no body was produced. The statement of Mewa Lal ( appellant no. 1, P.W. 1 ) is self contradictory also. He has stated in his examination in chief that he was present at the spot at the time of the incident, but he has stated in his cross examination that he was not present at the spot  at the time of incident. When Mewa Lal was not present at the spot at the time of incident he should have examined one or two eye witnesses of the  incident allegedly  present there but no one was produced by him. He has stated in his cross examination that a large number of villagers were present there at the time of incident. He has further stated in his cross examination that he had consulted an Advocate before lodging the F.I.R. and the F.I.R. was lodged at the police station as drafted by that Advocate. His above admission again goes to show that the story in the F.I.R. has been subsequently cooked up. The learned Workmen's Compensation Commissioner has rightly held dealing with the aforesaid evidence that the applicants have failed to prove that the  Rakesh Kumar was working with the opposite party as a workman. There is no legal defect in the above finding nor there is any perversity. The finding recorded by him is based on evidence. As such, there is no force in

this appeal and it is liable to be dismissed.

14. The appeal is hereby dismissed and the order passed by the learned Workmen's Compensation Commissioner is confirmed.

Dated:28.4.05

RPP.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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