FAO No.67 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.67 of 2010 DATE OF DECISION: 06.05.2010 **** State of Haryana through the Executive Engineer, PWD (PH Division), Fatehabad and others . . . . Appellants VS. Smt. Vidya Devi . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Anjum Ahmed, Addl. A.G. Haryana, Advocate for the appellants. **** RAKESH KUMAR JAIN J. This appeal is directed against order of Commissioner under the Workmen’s Compensation Act, Circle Hisar (for short ‘the Commissioner’) dated 30.10.2009 whereby, claim petition filed by the respondent has been allowed and she has been awarded Rs.1,88,301/- towards compensation. The learned Commissioner, while allowing the application has observed as under: - “Sh. Dharampal as AW-1 has stated that on 12.12.2002 declared Bhanwar Singh was working with him and while he was FAO No.67 of 2010 - 2 - maintaining the channel he caused pain and vomited with blood and was taken to Agroha Medical College accompanied by him and Sh. Chiman Lal, W.P.O. And he was referred for Rohtak Medical College but he died in the way. Sh. Dharmpal as AW-1 co-worker of the deceased has also stated that Bhanwar Singh was taken to hospital in the jeep No.HRB-8749. From OPD slip dated 12.12.2002 of Maharaja Agrasen Institute of Medical Research and Education, Agroha (Hisar) exhibit P-7, death certificate exhibit P-6 and from the evidence of Sh. Dharampal, Co-worker of the deceased Bhanwar Singh, it is evident that on 12.12.02 Bhanwar Singh was taken to the Agroha Medical College in serious condition and he was reference for PGIMS Rohtak but he died in the way. From the statement of AW-1 Sh. Dharampal it is evident that on 12.12.2002 the deceased caused pain and vomited with blood in his presence and from the exhibit P-7 it is evident that the deceased was taken Agroha Medical College on account of such pain. From the cross of Sh. Brijmohan J.E. As RW-2 it is evident that on 12.12.2002 Chiman Lal and Dharampal were their employees and were posted on the water works where deceased Bhanwar Lal used to work and further evident that he has not checked the water works on 12.12.2002 and he was not sure about the presence of Bhanwar Singh on 12.12.2002. It is also evident that FAO No.67 of 2010 - 3 - Chiman Lal WPO was not instructed to mark the present at 8.00 A.M. The respondents have not denied the fact of Jeep No.HRB-8749. The exhibit RW3/A bears the attendance of the deceased up to 11th and thereafter it remained blank. On this document presence of the deceased used to be marked by Chiman Lal WPO. As Sh. Chiman Lal was W.P.O. At Water Works who used to mark the presence of the deceased and who has also accompanied the deceased to hospital in the said jeep as stated by the applicants in their claim petition and as supported by the witness Sh. Dharampal as AW-1. The said Chiman Lal W.P.O. was not examined by the respondent to support their contention. The respondents could not rebut the documentary evidence exhibit P-6, exhibit P-7, exhibit P-9 and oral evidence of AW-1 and AW-2 and never challenged the very authenticity of the documentary evidence produced by the applicants and could not produce any cogent evidence to rebut the evidence of AW-1 and AW-2. The respondents could not establish any malice on the part of Sh. Dharmpal AW-1 who is also an employee of the respondents and who is independent eye witness. The respondent could not rebut the fact that the deceased was taken to Medical College Agroha by Sh. Dharampal and Chiman Lal in Jeep No.HRB-8749, as Shri Dharampal has categorically stated that at that time deceased was employed with him on the FAO No.67 of 2010 - 4 - said water works and was working of maintenance of channel and the deceased caused pain and vomiting with blood during the course of his employment in his presence and he was taken to Medical College Agroha. In the absence of examination of Chiman Lal who used to mark the presence of the deceased, the contention of respondents that the deceased was not on duty on 12.12.2002 cannot be taken as correct. From the statement of AW-2, it is also evident that the deceased was doing the duties of digging the drain etc. since his joining and the duties which was assigned to him were of hard nature and the death of Shri Bhanwar Singh was incidental to the working conditions. The respondent could not rebut this fact of working condition of the deceased. Therefore, there are reasons to believe that there was some connection between the death caused to the deceased Bhanwar Singh and the employment of the respondents. Further more the respondents could not make any suggestion why the applicants have wrongly fingered the respondents for compensation out of malice. The respondents could not bring any independent witness or any documentary evidence to prove their contention on the other hand and testimony of AW-1 and AW-2 and authenticity of documentary medical record is believable and cannot be discarded in the absence of any contrary FAO No.67 of 2010 - 5 - cogent evidence and in my view the respondents have denied the presence of the deceased on the day of incident on 12.12.2002 only with a view to avoid their liability.” Learned counsel for the appellants has vehemently argued that there was no relationship of employer and employee between the appellant and the deceased. However, he could not substantiate his argument with any evidence on record. On the contrary, Ex. RW3/A bears the attendance of the deceased upto 11th but thereafter it remained blank. On this document, presence of the deceased used to be marked by Chimanlal WPO, who had also accompanied the deceased to the hospital in Jeep No.HRB-8749 but the said Chimanlal was not examined by the respondent in support of their case. Moreover, the appellants could not rebut the documentary evidence Ex. P-6, P-7 and P-9 and the statement made by witnesses as AW1 and AW2. It was held by the Commissioner that duties assigned to the deceased were of strenuous in nature which accelerate his death. Therefore, it was found that deceased had died during the course of his employment. After appraisal of the order under challenge as well as the argument raised before this Court, I do not find any merit in the submissions made by learned counsel for the appellants as such the present appeal is dismissed, however, without any order as to costs. (RAKESH KUMAR JAIN) 06.05.2010 JUDGE Vivek