IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(WCA) No.171 of 2004. Reserved on:02.01.2009. Date of decision: 09.01.2009. Bagga Khan …Appellant. Versus M.D. H.P.State Food & Civil Supplies Corp. Ltd. & Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr.Ramakant Sharma, Advocate. For Respondents : Mr.Surender Verma vice Mr.Subhash Sharma, Advocate for respondents No.3 to 6. Kuldip Singh, Judge. This appeal has been directed against the order dated 2.3.2004 passed by Commissioner, Workmen’s Compensation, Nalagarh in case No.18/2001 rejecting the claim of the appellant. 2. The facts, in brief, are that the appellant filed petition under the Workmen’s Compensation Act, 1923 (for short ‘the Act’) claiming Rs.5 lacs compensation. The petition was initially filed against respondents No.1 and 2 but Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… later on respondents No.3 to 6 were also added as parties in the petition. The appellant has alleged that he had been working with respondent No.2 at Nalagarh for the last 4 – 5 years on Rs.100 per day. The appellant during the course of his employment with respondents No.1 and 2 sustained injuries. The appellant was asked by respondents No.3 to 6 to work for respondents No.1 and 2. The respondent No.3 had taken the contract from respondents No.1 and 2 for loading and unloading of materials from the godown of the respondents No.1 and 2. The respondents No.3 to 6 were working as labourers for respondents No.1 and 2. It has been alleged that respondents No.1 and 2 used to make payment to the labour through respondents No.3 to 6. The appellant was working with respondents No.1 and 2 and respondents No.3 to 6 used to get the work done from appellant for respondents No.1 and 2. 3. It has been alleged that on 30.6.2001 at about 4.45 p.m. while working for respondent No.2 along with respondent No.3 Suleman and Amar Chand etc., a bag accidentally fell on his left leg and on account of it his left leg was broken. He could not work properly and has suffered disability around 45%. The matter was reported to the police on 30.6.2001. He spent huge amount on his treatment. On those grounds, the claimant filed the claim …3… petition wherein in addition to compensation of Rs.5 lacs he has claimed interest at the rate of 12% per annum on the award amount. 4. The petition was contested by respondents No.1 and 2 by filing reply. They have denied that appellant was ever engaged by them. There was no relationship of employer and employee between them. On merits, the claim of the appellant was denied. They took the stand that Suleman was engaged by them at piece rate. It has been denied that appellant suffered any disability. The appellant was not a workman of respondents No.1 and 2, therefore, they are not liable to pay any compensation to appellant. 5. The respondents No.3 to 6 also contested the petition and filed separate reply. They denied that appellant was engaged by respondent No.2 or by them. They denied their liability to pay any compensation to the appellant. They denied that appellant sustained any injury as alleged by him. On the basis of the pleadings of the parties, the following issues were framed:- i) Whether the applicant was a workman under the respondents within the meaning of the Compensation Act? OPA ii) Whether the applicant sustained injuries while discharging the …4… duties under respondents and entitled for compensation? OPA iii) Relief. The Commissioner dismissed the petition on 2.3.2004 holding that the appellant was not a workman within the meaning of the Act nor he has suffered injuries while performing duties under the respondents. In these circumstances, the appellant has filed the appeal which was admitted on 2.6.2004 without reference to any substantial questions of law which were framed with the appeal and are available at Page-7 of the paper book and are follows:- (i) Whether the impugned order is the result of complete misreading, misinterpretation as well as mis- appreciation of the statements of PW-1 to PW-4? (ii) Whether the learned Commissioner is right in holding that the appellant has failed to establish his relationship with the respondents especially when the evidence on record including the statements of RW-1 and RW-2 conclusively proves that no record was maintained by the respondents and it was orally proved that the respondent No.3 was given the work on the basis of piece …5… rate who had engaged the labour for this purpose? (iii) Whether the learned Commissioner is right in not taking into consideration the provisions of Section 12 of the Workmen’s Compensation Act, 1923? (iv) Whether the learned Commissioner is right in not taking into consideration the report dated 30.6.2001 Exhibit PW-6/A? (v) Whether the learned Commissioner is right in not considering the permanent disability certificate Exhibit PW-5/A? (vi) Whether the learned Commissioner is right in not taking into consideration the evidence of the appellant which stands corroborated by PW-1, PW-2 and PW-4 showing that the appellant had sustained the injuries during the course of employment? (vii) Whether the impugned order is the result of non-consideration of law cited before the learned Commissioner? …6… In these circumstances, the learned counsel for the parties were heard on the above substantial questions of law. 6. I have heard Mr.Ramakant Sharma, learned counsel for the appellant, Mr.Surender Verma, learned counsel appearing on behalf of Mr.Subhash Sharma, Advocate for respondents No.3 to 6 and gone through the record. It has been submitted by learned counsel for the appellant that the Commissioner has not properly appreciated the material on record. The oral and documentary evidence has not been properly appreciated. The appellant has proved his case against all the respondents, in any case respondent No.3 cannot escape the liability to pay the compensation. The learned counsel appearing on behalf of respondents No.3 to 6 has supported the impugned order and has submitted that the appellant has miserably failed to prove his case against any of the respondents. SUBSTANTIAL QUESTIONS OF LAW No.(I) to (vii): 7. The substantial questions of law No.(i) to (vii) can be disposed of collectively, therefore, all of them are being taken up together for decision. The appellant initially filed petition against respondents No.1 and 2 only. PW-2 Bagga Khan has stated that he was engaged by Nazeer, Bhura and Suleman, Contractor for loading and unloading. …7… At the time of accident, he was daily paid worker of Civil Supplies. In cross examination, he has admitted that in the record of Civil Supplies his presence was never recorded. The Contractor used to mark the presence. He was working with the contractor for the last 4 – 5 years. PW-5 Dr.Anil Bansal has proved disability certificate Ext.PW-5/A. RW-1 Chaman Lal, Incharge, Civil Supplies Corporation, Nalagarh has stated that the Corporation had engaged Suleman for loading and unloading at piece rate. The Corporation except Suleman had not engaged any person for loading and unloading. As per the record of the Corporation, Bagga Khan was never employed by the Corporation. RW-2 Suleman has stated that he works for Civil Supplies Corporation for loading and unloading on piece rate basis. Bagga Khan never worked with him or with Civil Supplies Corporation. Bagga Khan did not sustain any injury on 30.6.2001 while working with him as Bagga Khan did not work with him on 30.6.2001. Ext.PW-6/A is the rapat No.20 dated 30.6.2001 which was got recorded by HC Prem Lal on the basis of information given by Bagga Khan. The report Ext.PW-6/A was placed on record by PW-6 C. Ram Pyara. In Ext.PW-6/A Bagga Khan has nowhere stated that he sustained injury while in the employment of respondents No.1, 2 or respondent No.3 to 6. He has stated that …8… Suleman, Amar Chand and he himself etc. were doing loading and unloading when he sustained injuries. 8. The disability certificate Ext.PW-5/A is of no help to the appellant in absence of proof that appellant sustained injury during the course of his employment with any of the respondent. The report dated 30.6.2001 Ext.PW-6/A also nowhere connects the injury of appellant with his employment with any of the respondent. The appellant has not proved that he was in the employment of respondents No.1 and 2 or 3 to 6. It is not believable that Civil Supplies Corporation would not maintain a record of payment to its labour. RW-1 Chaman Lal, on the basis of record, has specifically stated that the Corporation had never engaged Bagga Khan. The statement of PW-1 Mohammad Aslam is not believable that Bagga Khan while working in Civil Supplies Corporation godown sustained leg injury on right leg which has been contradicted by PW-5 Dr.Anil Bansal. The case of Bagga Khan is that he sustained injury in left leg. It appears that PW-1 Mohammad Aslam is not an eye- witness. PW-3 Amar Chand has stated that he and Bagga Khan were engaged by the Civil Supplies Corporation through contractor Bhura, Suleman and Nazeer. PW-4 Pawan Kumar has not stated who engaged Bagga Khan for loading and unloading at the time of accident. PW-2 Bagga …9… Khan has stated that he was engaged by Nazeer, Bhura and Suleman contractor. There are material contradictions regarding the alleged engagement of Bagga Khan on 30.6.2001 at the time of loading and unloading. 9. The Commissioner, on the basis of material on record, has taken a possible view. The learned counsel for the appellant has failed to point out that the view taken by the Commissioner on the basis of material on record is perverse or is not at all possible. It is also not the case of the appellant that inadmissible evidence has been relied or material evidence has been ignored by the Commissioner. The appellate Court simply on the basis of other possible view would not reverse the well reasoned finding of the Commissioner emerging from the evidence on record. No case for interference is made out. The substantial questions of law No.(i) to (vii) are decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed. No costs. January 9, 2009 ( Kuldip Singh ) (soni) Judge. …10…