1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. FAO(WCA) NO.172 of 2004 Judgment Reserved on: 26.12.2008 Date of Decision: 31.12.2008 Jeet Ram ………………Appellant Versus Nathu Ram and another ……….. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, ,Judge Whether approved for reporting? No For the Appellant : Mr. Ramakant Sharma, Advocate. For the respondents: Mr. Ashwani K. Sharma, Advocate, for respondent No.2. Kuldip Singh, J The appellant who was claimant before the Commissioner Workmen’s Compensation (SDM), Nalagarh has filed this appeal against rejection of his claim petition by the said Commissioner in Case No.1 of 2002. 2. The brief facts of the case are that appellant filed petition, claiming Rs.3,00,000/- compensation on account of injuries sustained by him during the course of his employment as cleaner on truck bearing registration No.HP-12-3727 on 24.5.2001 at about 11.30 at village Bhatian, the respondent No.1 was the owner __________________________ Whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 of the truck at the time of accident. The respondent No.2 was impleaded as insurer of the truck. It was alleged that the appellant was earning Rs.2,000/- per month wages as cleaner and he was 20 years of age at the time of accident. In the accident the appellant sustained leg fracture, he was treated by Dr. Sat Parkash at Ropar and also at Civil Hospital, Solan. The accident was reported by way of rapat No.8 dated 25.9.2001 at Police Station, Nalagarh. The petition was amended and the date of accident was substituted to 24.9.2001. 3. The respondent No.1 had filed reply. He virtually admitted the case of the appellant as pleaded by him. He submitted that vehicle No.HP-12-3727 was insured with respondent No.2 on 31.5.2001 and at the relevant time was being driven by Ram Lok driver who was holding valid and effective driving licence dated 5.5.1989. The respondent No.2 had filed separate reply and has contested the claim of the appellant by taking preliminary objections of lack of privity of contract between respondentNo.2 and respondent No.1 at the time of the accident. The respondent No.1 was neither the registered owner of vehicle No.HP-12-3727 nor he had insurable interest in the vehicle. The insurer denied the accident. The petition has been filed in collusion with respondent No.1. The driver was not holding valid and effective driving licence at the time of the accident. On merits, it has been denied that appellant was a workman and the accident took place during the course of his employment with respondent No.1. The income of the injured was also denied. 4. The following issues were framed:- 3 1. Whether the applicant was a workman under the definition of the Act at the time of accident ?OPA 2. Whether the applicant sustained multiple injuries while discharging the duties under respondent No.1? OPA 3. Whether the applicant is entitled for compensation, if yes, from whom? OPA 4. Whether the truck driver was not having valid and effective driving license? OPR 5. Whether there was no privity of contract of Insurance. OPR 6. Relief. The Commissioner has held that appellant did not sustain injuries while discharging his duty and ultimately dismissed the claim petition, hence this appeal which was admitted on 3.6.2004 without reference to any substantial question of law, however the substantial questions of law were filed along with the memorandum of appeal which are at page-7 of the paper book. Therefore, the learned counsel appearing for the parties were heard on the following substantial questions of law:- 1. Whether the impugned order is the result of complete misreading, misinterpretation and mis-appreciation of Exhibit PW-2/A report dated 25th September, 2001? 4 2. Whether the learned Commissioner is right in not discussing the evidence of the appellant and his witnesses, namely Ramesh Chand PW-2, Ram Lok PW-3 and that of respondent who have appeared as RW-1 ? 3. Whether the learned Commissioner is right in holding that there was no privity of contract when there was no such plea taken by the respondents? 4. Whether the impugned order is the result of non-consideration of order dated 11th November, 2002 whereby the appellant was permitted to amend the application and the date of accident having been admitted by the respondent No.1 in his reply, whether findings to the contrary can be said to be sustainable? 5. Whether the impugned order is the result of misreading, misinterpretation as well as mis-appreciation of Exhibits RW-1, the Insurance policy? 6. Whether the impugned order is sustainable keeping in view the oral as well as documentary evidence particularly there being no cross-examination to the specific stand taken by the appellant as well as his witnesses that the accident had occurred on 24th September, 2001 ? 5. I have heard Mr. Ramakant Sharma, learned counsel for the appellant and Mr. Ashwani K. Sharma, learned counsel for respondent No.2 and gone through the record. It has been submitted on behalf of the appellant that Commissioner has drawn wrong 5 inference from the evidence on record in returning the finding that appellant did not receive injuries during the course of his employment. The oral and documentary evidence has been misconstrued and misinterpreted by Commissioner while dismissing the petition. On the contrary, on behalf of respondent No.2, it has been submitted that the claim petition itself is collusive in between appellant and respondent No.1 who are real brothers. There are material contradictions in the case of the appellant. The appellant was allegedly treated at Ropar and Solan after the accident but no evidence of treatment of appellant at Ropar or Solan has been produced except disability certificate Ex.PW-1/A which does not prove that the disability shown therein is the result of the accident dated 24.9.2001 as pleaded by the appellant. It has been submitted that Commissioner has rightly appreciated the material on record and no fault can be found with the ultimate findings recorded by the Commissioner. Substantial questions of law 1 to 6 6. The substantial questions of law 1 to 6 are interconnected therefore, all of them are being taken up together for decision. The pleaded case of the appellant is that accident took place on 24.9.2001 at about 11.30 at village Bhatian when the appellant was tightening the rope of maize loaded truck. PW-1 Dr. Anil Bansal has proved disability certificate Ex.PW-1/A of the appellant, showing 30% disability in relation to right leg of the appellant. This witness has nowhere stated that he examined or treated the appellant on 24.9.2001 or immediately thereafter. 6 Therefore, no help can be taken from the statement of PW-1 as far as accident is concerned. PW-2 HC Ramesh Chand has proved copy of rapat No.8 Ex.PW-2/A dated 25.9.2001. In his cross-examination he has admitted that this rapat was not written by him. He has also denied that initially the date written in Ex.PW-2/A was 24.5.2001 and later on by way of overwriting it was changed. PW-3 Ram Lok was the driver of the truck at the time of accident, he has stated that accident took place on 24.9.2001 at about 3.30 p.m. The truck was to be taken from village Salewal to village Bhatian after loading maize of Chottu Ram. Jeet Ram was employed on the truck three months before the accident and was being paid Rs.600/- per month salary. He has stated that the log book of the truck was being maintained. After the accident Jeet Ram was taken to Ropar for treatment. 7. PW-4 Jeet Ram claimant has stated that on 24.9.2001 at about 11.30 a.m. after loading the maize of Chottu Ram at village Salewal on truck No.HP-12-3727 he was tightening the rope of the truck and in that process he sustained injuries. He was taken to Ropar in a private hospital for treatment. Thereafter he was treated at Solan hospital. He was being paid Rs.600/- per month salary and Rs.50/- daily allowance. In cross-examination he has admitted that Nathu Ram owner of the truck is his real brother. He has also stated that he was engaged as cleaner by Ram Lok in the truck. 8. RW-1 Nathu Ram has stated that at village Salewal maize was loaded in the truck by cleaner Jeet Ram and driver. The rope broke down when cleaner was tightening the rope of the loaded truck and he fell down. The cleaner was being paid Rs.600/- per 7 month salary and Rs.50/- daily allowance. The truck was insured with the policy Ex.RW-1/A which was transferred in his name vide Ex.RW-1/B. In cross-examination he has stated that on his asking driver Ram Lok engaged the cleaner. 9. The learned counsel for the appellant has heavily relied upon Ex.PW-2/A copy of rapat No.8 dated 25.9.2001 which was lodged by Nathu Ram owner of the truck. It has been submitted that in the report it has been clearly stated that accident took place at 3.30 p.m. on 24.9.2001 when they were returning to their home after loading maize from the fields in truck No.HP-12-3727. The rapat Ex.PW-2/A has been placed on record by PW-2 HC Ramesh Chand. He has stated that this report was not written by him. There is overwriting in the rapat Ex.PW-2/A. The date 24.5.2001 appears to have been changed to 24.9.2001, how this change has taken place that has not been explained. The learned counsel for the appellant has stated that the rapat was promptly lodged on 25.9.2001, therefore, there is no scope for interpolation. The rapat Ex.PW-2/A is a suspicious document. In addition to this in the rapat it has been stated that Nathu Ram and Jeet Ram after loading the truck from their fields were returning to their homes when accident took place at about 3.30 p.m. The pleaded case of the appellant is that accident took place at 11.30 at village Bhatian. PW-4 Jeet Ram in his statement has stated that accident took place at 11.30 a.m. at village Salewal and they had loaded maize from the fields of Chottu Ram. PW-3 Ram Lok driver of the truck has stated that accident took place at 3.30 on 24.9.2001 at village Salewal when they loaded 8 maize of Chottu Ram. RW-1 Nathu Ram has also stated that accident took place at Salewal. Thus the place of accident has been changed from Bhatian to Salewal, the time of accident has also been changed from 11.30 a.m. to 3.30. 10. In rapat Ex.PW-2/A RW-1 Nathu Ram has stated that they were returning to their homes after loading their maize from the fields but PW-3 Ram Lok and PW-4 Jeet Ram have stated that they loaded the maize of Chottu Ram and thereafter accident took place. There are material contradictions regarding the accident. The appellant has not examined any doctor who treated him either at Ropar or Solan after the accident. The appellant has miserably failed to prove that accident took place on 24.9.2001 and he sustained injuries during the course of his employment with respondent No.1. The appellant and RW-1 Nathu Ram are real brothers and therefore, RW-1 is supporting the case of appellant, but appellant has failed to prove his case when various statements of the witnesses and documentary evidence are closely examined. There is substance in the submission of learned counsel for respondent No.2 that appellant has filed the petition in collusion with respondent No.1 11. It is strange, RW Nathu Ram owner of the truck did not engage appellant directly as cleaner even though appellant is his brother and got him engaged through PW-3 Ram Lok. Appellant and PW-3 have stated that appellant was being paid Rs.600/- per month salary and Rs.50/- daily allowance which collectively comes to Rs.2100/- per month. In the claim petition, the appellant has pleaded that he was being paid Rs.2000/- per month wages without 9 specifying what amount for salary and daily allowance separately. RW-3 Ram Lok has stated that appellant was being paid Rs.600/- per month wages without reference to any daily allowance. Thus regarding the wages of appellant the evidence which has come on record is contradictory. PW-3 has also stated that the log book of the truck was being maintained but no such log book was produced in evidence. 12. The disability certificate Ex.PW-1/A of appellant is not of any significance in absence of proof that the appellant has sustained injuries during the course of employment as cleaner. Similarly the insurance of the truck Ex.PW-2/A at the relevant time is also not of any significance in absence of proof that the appellant has sustained injuries during the course of his employment with respondent No.1. 13. The Commissioner has rightly appreciated the evidence on record. The learned counsel for the appellant has failed to point out misreading and misconstruction of pleadings oral and documentary evidence on record. It has not been pointed out what material evidence has been ignored by the Commissioner while rejecting the claim of the appellant. No case for interference has been made out. The substantial questions of law 1 to 6 are decided against the appellant. 14. No other point was urged. 15. The result of the above discussion, appeal fails and is accordingly dismissed with no costs. ( Kuldip Singh) Judge December 31, 2008(sks) 10