HIGH COURT OFCHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, iVi.A.(C)No.131320Q9 Sunii and 2 others. Versus Bhuvan and another. r ORDER For Pronouncement oLOrder i') .03.2011 Sd/- i-L. Jbanwar Judge •'*•¥- li HIGH COURT OF CHHATTiSGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR.A Misc. ADpea! i'C) No.1313 of 2009 >/ Ciaimants RESPONDENTS Non-appiicants 1. Sunil, son of Devcharan @ Devkaran Yadav, aged about 2 years, minor, amicus curai Punau son of Mungtu Yadav, 2. Smt. Dukhm w'fe of Punau Yadav, aged about45years. 3. Punau son of Mangtu Yadav, aged about 48 years, All resident of Viiiage Chitaud, Post of Chitaud, Police Station Gurur, Tahsi Gurur, District Durg (C.G.) VERSUS Dinesh son of Bhuvan Sinha, aged about 25 years, resident of Jodhapur Chowk, Dhamtari, Tahsil and District Dhamtari (C.G.) APPEAL UNDER SECTION 30 OF THE WORKMEN'S CQWIPENSATiON ACT. 1923 Appearance: Shri Pankaj Agrawal, counsei for the appellants. Shri Kunai Das, counsei for respondent. QRDER (Passed on -^ .03.2011) This appeal is directed against the order dated 8.9.2009 passed in Case No.135AA/CAct/FataI/2005 by the Commissioner, Workmen's Compensation Act, Labour Court, Durg (for short 'the Commissloner') dismissing the ciaim petition of the ciaimants. 2. This appeai has been admitted on the foliowing substanfiai question of iaw: 'Whether the finding recorded by the learned Commissioner . ' that the deceased was not the empioyee of respondent is perverse or not" 3. Brief facts, as per pleadings of the claimsnts, are that on 22.4.2005 Devcharan (since deceased), who was working under the employment of respondent, went to village Kuliya tojpad and unioad the boulders (in -^" •'.,'• ^' 2 common pariance ca!!ed as Muruni) in truck bearing C.G. 07 ZC 1669 (for short 'the truck') owned by respondent, along with other labourers. Whlie Devcharan was digging outi bouiders fell on his head and other parts of the body, as a result of which, he received injuries and during treatment, he succumbed to the injuries on the same day. 4. Seeking compensation of Rs.2,62,154/- ciaim petition was fi!ed bsfore the learned Commissionsr pleading that the deceased was earning Rs-80/- per day; on the date of incident he was aged 24 years and the deceased was working since !ast 2 years under the respondent and that the deceased died arising out of and in the course of employment. 5. The respondent by filing written statement dsnied payir.! compensation on the ground that the deceased was not 'nis employee. S. The learned Commissioner, on c!ose scrutiny of the evidence, materiai piaced and submissions made by respective parties, dismissed the ciaim petition on tiie ground that the claimants have not been sble to prove whether deceased was the employer of respondent and hs died arising out of and in course of employment. 7. Shri Par.kaj Agrawa!, learned counsel. for the appellants/claimants argued that deceased was working as casua! iabour under the mines of respondent since last two years. However, the learned Cornmissioner has wrongly held that the deceased was not employee of respondent, despite there being ampie evidence on record for proving the fact that the deceased was the employee of respondent and was getting Rs.2400/- per month. On these premises, he urged that the respondent be directed to pay compensation with penalty and interest. 8. On fhe other hand, Shri Kunai Das, ieamed counsei for respondent argued that the deceased was not the empioyee of respondent and the respondent is not the owner of mines nor said truck. Therefore, the respondent is not tiable to pay any compensation. Sn support of his arguments he has referred documents Ex.D.1 to Ex.D.3 relating to minss which beiong to one Anand Singh and doe? not belong to respondent. f-t 9. !n order to appreciate the arguments advanced on behaif of the parties, I have perused the record of the iearned Commissioner inciuding impugned award. 10. !n the instant c'ase, it has to be seen whether or not the deceased Devcharan @ Devkaran Vi/as working under the respondent. As per pieadi'ngs of the appellants, deceased Devkaran was working in truck bearirig C.G. 07 ZC 1669 owned by the deceased respondent Bhuwan and Dinesh; and was getting Rs.80/- per day, Rs.2400/- per month; on 22.4.2005 deceased along with some other iabourers working under the respondents went to vitlage Kuliya in the said truck to extract the boulders from mines and to !oad and unload the same; whi!e digging out mlshap took place and Devkaran died. In support of their pleadings, evidence vvas adduced. A.W.1 Ramjee Yadav hss stated that on 22.04.2005 he went to viilage Kuiiya aiong with Pawan, Maadhav, Tikesh and the deceased for bringing boulders, in the said truck and whiie they were loading the boulders extracted from mines, boulders fell on the deceased, due to which, the deceased was suppressed beneath the boulders. He has aiso stated that Bhuwan Sinha was paying Rs.80/- per day to them. In hls cross-examination, he has stated that the owner of fhe said truck is Dinesh and he was employed by them. Pawan Kumar A.W.2, while supporting the evidence of A.W.1 Ramjee Yadav, has stated that they are the employees of the respondents Dinesh and Bhuwan and has further stated about the accident since he was present on spot. A.W.3 Punau, who is the father of the deceased Devkaran, has stated that his son was working in the truck of Dinesh and on the date of accident he went to viilage Kuiiya along with above witnesses for bringing bouiders from the mines. He has also stated that Pawan and Bhuwan did not pay even single penny to him. N.A.W.1 Dinesh Kumar Sinha has stated that deceased was known to him because the deceased was working in the mines. He has also stated that the deceased was assisting in loading the bouiders in his truck. If was a!so deposed by him that mines situated at viiiage Kuliya does not belong to him belongs to some Anand Ram. He has aiso produced Ex.D.1 Form B-1, Ex.D.2 is Khasra and Ex.D.3 is the .map, wherein the name of Anand Singh is shown. However, in his cross- examination, he admitted that he used to load and unload of bouiders and ''••^. s '•. 1 s. "\ ? ^Sg^ "Si»y: .^SS?^ ^ its transport from viilage Kuliya. He aiso admitted that at the tirne of accident when Devkaran died, he was not present on the spot and Devkaran died on 22.4.2005. He denied that he was paying Rs.80/- per dayto the deceased person. 11. From the above evidence, it is ciear that the deceased died on 22.4.2005 when he was digging out boulders in the mines. His death certificate is Ex.100. So far as the deceased v.'as the employee of the respondent is concerned, it is clear from the evidence of A.W.1 Ramjee Yadav, A.W.2 Pawan and A.W.3 Punau that the deceased v/as workina in the said truck which belongs to Dinesh and this piece of evidence finds place in cross-examination of Ramjee Yadav and Pawan. Both these witnesses are aiso the empioyees of Dinesh and the evidence of these witnesses was not rebutted by any evidence. More over, the respondent afso did neither produce any document to show as to v/ho is the owner of the truck nor did produce any such document to show that he is not the owner of the said truck. Therefore, it is presumed that ths truck No. C.G. 07 ZC 1669 belonged to the respondent. Sub-clause (c) of Ciause (ia) of Sectlon 2 (1) (n) ofthe Workmen's Compensation Act, workman is defined to the effect that 'a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle." Since the respondent also did not rebut the evidence adduced by the appellants, therefore, it is presumed that the deceased was working 'm the said truck as workman, as defined in Workmen's Compensation Act. The respondent had mere!y produced documents Ex.D.1 to Ex.D.3 to show that mines does not belong to him. !t has also not come in his evidence that as to how those documents i.e. Ex.D.1 to Ex.D.3 came into possession of the respondent. in the absence of'clinching and reliabfe evidence pf respondent, it is difficult to ho!d that the deceased was not the empioyee of respondent. 12. After having considsred the entire facts of the case and the evidence avaiiabie on record, ! have no 'Hesitation in hoiding that the deceased Devekaran was working under th$ respondent and whiie he was -doing the job of ioading and unloading of bouiders in the said truck, he died due to fal! of boulders on him and the reiationship of empioyer and employee has been estabiished by the evidence adduced by the i^(li r appeilants. The iearned Commissioner has not correctiy appreciated the evidence and the finding recorded by it that the deceased was not the employee of respondent appears to be perverse in law. The substantia! question of law is answered accordingly. 13. For the reasons aforesaid, this appea! is allowed and the impugned order dated 8.9.2009 passed by the learned Commissioner is set aside. Ths matter is remitted back to the Court below for passing fresh ordsr and deciding the compensation payable to the appeliant. 14. Record be sent back to the Labour Court concerned forthv/ith. R.L. Jhaiwar Judge .-'•••;;