^ c^ IN THE HIGH COURT OF JUDICATURE CHHATTISGARH ^r M. A. (Cl No.£ AT BILASPUR ^L ^ 12009 sinflle BencK ? APPELLANT (Non-Applicant) /- G ..........^^ ^^ TM^~^.^- "^i^w^\^W .e"-oa6t>" M/s. Chakraverti Products Through: Managing Director, ^Bimal Krishna Chakraverti S/o Late H.N. Chakraverti, aged 'about 80 years, M/s. Chakraverti Products, Main Road, Mana.Camp ' P.S. & Post, Mana Camp, Tahsil & Distt.- Raipur (C.G.) VERSUS ^. L..- /" RESPONDENT "[APPLICANT] : , Ku. Aasha Vishwas ^ ^ D/o Dulal Vishwas (Minor) Through its nature guardian Smt. Shobharani Vishwas; W/o Dulal Vishwas, R/o 18 Block, H. N0. 31 Mana Camp, P.S & Post Mana Camp, Tahsil& Distt.- Raipur (C.G.) \^' APPEAL UNDER SECTION 30 OF THE WORKMEN COMPENSATION ACT ,~\ :"\ 'cS) HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(ClNo.964of2009 Appellant Non-Applicant Respondents Applicant Vs M/s Chakraverti Products Ku. Aasha Vishwas POST FOR ORDER ON ^-'} SEPTEIVIBER. 2011 2^ Sd/- G. Minhajuddin Judge ^j^ .y.zun //s a:. ^ ^. '^ ^^p; •^;-'-1-' © HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant Non-Applicant Respondents Applicant M.A.(C)No.964of2009 M/s Chakraverti Products Vs Ku. Aasha Vishwas Present: Mr. Raghvendra Pradhan, counsel for the appellant. Mr. A.L. Singroul, counsel forthe respondent. ORDER (Passed on 2-^ September, 2011) G. Minhaiuddin. J 1. This appeal has been filed by the appellant/employer under Section 30 of the Workmen's Compensation Act, 1923 (in short "the Act, 1923") against the award dated 23.3.2009 passed by the Commissioner for Workmen's Compensation, Labour Court, Distt. Raipur in Case No.B-394/WC Act 03/Non Fatal, fastening the liability to pay compensation to the injured employee/claimant upon the appellanVemployer. 2. Brief facts of the case, as per averments in the application of the claimant for compensation, are that Ku. Aasha Vishwas was working in the Nadda factory of the appellant as a labour and was getting Rs.60/- per day (Rs.1560/- per month). On the fateful day i.e. 10.11.1997at about 7 pm, while cutting Nadda from the machine, right hand of Ku. Aasha Vishwas was caught in the machine, as a result of which four fingers of her right hand were chopped out. She was taken to Dr. Sushil Kalda for treatment and thereafter, she was treated at Govt. Hospital, Mana. On account of the said accident, she sustained 40% permanent disability. The ^i^^ ^ 'y/ injured employee being minor, her natural guardian - mother filed a claim petition for compensation of Rs.1,50,0007- along with penalty and interest from the appellant/employer. 3. Learned Commissioner for Workmen's Compensation, on close scrutiny of the evidence adduced before it and after affording opportunity of hearing to the parties, passed the impugned award dated 23.3.2009 and awarded a total compensation of Rs.91,416/- in favour of the injured claimant. 4. Heard learned counsel for the parties, perused the Lower Couri: Record as also the impugned award. 5. The following substantial questions of law are involved for adjudication in this appeal: (i) Whether the Commissioner for Workmen's Compensation was justified in holding that there was relationship of employer-employee between the appellant and the respondent/claimant? (ii) Whether the Commissioner for Workmen's Compensation was justified in holding that the respondent/claimant sustained grievous injuries resulting in permanent disability due to an accident arising out of and in the course of employment under the appellant? (iii) Whether the Commissioner for Workmen's Compensation was justified in condoning the delay in filing the application for compensation by the respondent/claimant? 6. Learned counsel for the appellanVemployer has contended that relationship of employer-employee as well as the fact that the accident had taken place out of and in the course of employment, ^..A. "X // '••m^^^. '^. have not been proved and despite that the Commissioner for Workmen's Compensation has held the same in favour of the respondenVclaimant and thereby, committed a manifest error of law. 7. He has further contended that the application filed by the respondent/claimant before the Commissioner for Workmen's Compensation was hopelessly time barred and despite the fact that no satisfactory explanation has been given for the delay, the delay has been wrongly condoned, which has taken away the right vested in the appellant/employer. 8. On the contrary, learned counsel for the respondenVclaimant has supported the impugned award. 9. The respondenVclaimant in support of her application for compensation has, in addition to herself as AW-1, examined her mother Smt. Shobha Rani as AW-2 and besides oral evidence, has filed documents relating to criminal case filed against the appellanVemployer. The appellanVemployer, in order to substantiate the averments made by him in reply to the respondent's claim application, has examined himself, Nipin Shah, Pushpa Dutta and Smt. Anita Sarkar as NAW-1, NAW-2, NAW-3 and NAW-4 respectively. 10. Regarding relationship of employer and employee between the appellant and the respondenVclaimant, both claimant - Ku. Aasha Vishwas (AW-1) and her mother Smt. Shobha Rani Vishwas (AW-2) have stated in very clear and unambiguous words that Smt. Shobha Rani (AW-2) and her minor daughter Ku. Aasha Vishwas (AW-1) were employed in the Nadda factory of the appellant and they were ^•\ ^^^s^'' :^ '^^ being paid @ Rs.80/- and Rs.60/- per days respectively. Smt. Shobha Rani (AW-2) used to prepare mixture and the respondent/claimant Ku. Aasha Vishwas (AW-1) used to feed Nadda in the machine for cutting purposes. During this process, the right hand of Ku. Aasha Vishwas was caught in the machine, as a result of which four fingers of her right hand were chopped out. As per the statements of these witnesses, firstly Ku. Aasha Vishwas (AW-1) was taken to Dr. Naik at Mana and after getting first-aid to her, she was taken by the appellant/employer himself to Dr. Kalda at Raipur, where treatment was dohe and the expenses were borne by the appellant/employer. 11. The factum of accident finds corroboration from the documents filed on behalf of the respondenVclaimant. In addition to this, the appellanVemployer has himself not denied the factum of accident but had taken a stand that the respondent/claimant Ku. Aasha Vishwas was never employed by the appellant and she used to come to his factory for giving lunch box to her mother Smt. Shobha Rani (AW-2), who was working in his factory. The accident had taken place at about 7 pm and the same has not been challenged by the appellant/employer. 12. So far as relationship of employer-employee between the appellant and the respondenVclaimant is concerned, Ku. Aasha Vishwas (AW-1), her mother Smt. Shobha Rani (AW-2) as well as the appellant/employer and his witnesses have admitted that attendance of the employees of the appellant's factory used to be marked in his factory. As such, the best evidence regarding the persons, who were actually employed by the appellanVemployer, /t:r^ '\ |^S3|| ^.fe^ was in the possession of the appellant/employer and he was duty bound to produce the same and prove it as per provisions of Section 106 of the Evidence Act. However, the attendance register of the appellant's factory was not produced before the Commissioner for Workmen's Compensation. 13. It is true that Ku. Aasha Vishwas (AW-1) and her mother Smt. Shobha Rani (AW-2) have also admitted that they were given diaries by the appellant/employer, in which their attendance was marked and the same has not been produced by them. However, the documents relating to engaging of the employees were in possession of the appellant/employer and the same have not been produced by the appellanVemployer. Thus, due to non-production of attendance registers and wages registers, which were best evidence in possession of the appellant/employer, an adverse inference could safely be drawn that had the said registers been produced, they would not have supported the case of the appellanVemployer, but would have supported the case of the respondent/claimant. As such, from the evidence on record, it stands established that at the relevant point of time, the respondenVclaimant Ku. Aasha Vishwas (AW-1) was in the employment of the appellant and the accident resulting in chopping of four fingers of right hands of the respondent/claimant had taken place out of and during the course of employment under the appellant. Consequently, it cannot be said that the findings recorded by the Commissioner for Workmen's Compensation in favour of the respondenVclaimant and against the ^;..-^. "•%. 1 '^•e'W^ t.:! ^ '-/ ^^ "^ ^ '<=5> appellant/employer suffer from any illegality or legal infirmity, and the same deserves to be affirmed. 14. So far as condoning of delay in filing the application for compensation by the respondenVclaimant under theAct, 1923 is concerned, the respondent/claimant was a minor child, aged about 9 years, whose mother Smt. Shobha Rani (AW-2) was an illiterate labour and her father was a rickshaw puller. Smt. Shobha Rani (AW-2) has stated that when she appeared as a witness in the criminal case filed against the appellant/employer, that she came to know about her right to claim compensation before the Commissioner for Workmen's Compensation, only on being informed by the Presiding Judge of the criminal Court, and only thereafter, she filed an application for compensation on behalf of her minor daughter Ku. Aasha Vishwas. In addition to this, it should not be lost sight of that like the Motor Vehicles Act, 1988, the Workmen's Compensation Act, 1923 is also a social welfare legislation. Though, previously in the Motor Vehicles Act, 1939, there was a provision of limitation, but the same has been deleted in the new Motor Vehicles Act, 1988. 15. Thus, in view of the above fact, it is clear the Commissioner for Workmen's Compensation has adopted a pragmatic and right approach in condoning the delay in filing the application for compensation by the respondenVclaimant. 16. It is necessary to mention here that as per provisions of clause (a) to sub-section (3) of Section 4A of the Act, 1923, the minimum rate of interest is 12% per annum on the amount of compensation, whereas, in the instant case, the Commissioner for Workmen's Compensation has awarded interest @ 6% per annum, which is not correct. However, since there is no cross-objection filed by the respondent/claimant for enhancement of the amount of compensation or the rate of interest, therefore, the rate of interest cannot be enhanced. 17. In the result, the appeal fails and is hereby dismissed. 18. No order as to costs. Sd/- G. Minhajuddin Judge piwaiua^