HIGH COURT OF CHHATTISGARH AT BILASPU M.A.C. No. 1347 z 2009 APPELLANT Kailash Agrawal, S / o Shri NON—APPLICANT Ramkishan Agrawal, aged about 46 No. 2. years, - R/o Quality Steel (Royal) Industries, near Chhat Talab, Chhawani Bhilai, Tahsil and Distt. Durg (CG) ' Versus RESPONDENTS l. Laljharo Devi, sd/o late Vijay APPLICANTS Kumar Singh, aged about 43 years 2. Santosh Kumar Singh, S/o Late Vijay Kumar Singh, aged about 28 years 3. Mithlesh Kumar Singh, S/o late Vijay Kumar Singh, aged about 22 years All R/o Gokul Nagar, Shriram Chowk, Zone — 2, Khursipar, Bhilai, District Durg (CG) 4. Ranvir Ram, S/o Ghanshyam Ram, R/o E.W.S. 1621, Housing Board, Bhilai, Tahsil and District Durg (CG) 5. Divisional Manager, National Insurance Company Limited, Akash Ganga Complex, Supela, Bhilai, Tahsil and District Durg (CG) / SB:- Hon. Shri N.K. Agarwal, J. PRESENT :— Shri Amiyakant Tiwari, Adv. for appellant. Shri Anurag Jha, Adv. for respondents No. 1 to 3. Shri B.N. Nande, Adv. for respondent No. 5. ORDER (31—3-2010) Per N.K. Agarwal, J The instant appeal is directed against the award dated 6—8~ 2009 passed by the Commissioner for Workman Compensation, Labour Court, Durg (for short, ‘the Commissioner’) in case No. 57/W.C. Act Fatal/2005 awarding Rs. 2,20,272 /— as compensation along with penalty. as 30% of it i.e. Rs. 66,082/— against the appellant. 1. R Brief facts of the case are as under:- According to respondents No. 1 to 3, Vijay Kumar Singh (since deceased) on 11-3—2005 was working in Quality Steel (Royal Industries). On that date, While on duty, he met with an accident and succumbed to the injuries sustained in the said accident. Since the accident occurred during the course of employment, the respondents No. 1 to 3 have filed claim petition before the Commissioner claiming Rs. 2,20,272/~ along with penalty and interest against the contractor Ranbir Ram, Insurance Company and Kailash Agrawal for Quality Steel (Royal Industries). Written statement was filed by M/s Quality Steel through proprietor Ramkishan Agrawal in which it has been specifically stated that Ramkishan Agrawal is owner of that industry and Kailash Agrawal is his son. It was also pleaded that the said deceased employee of the factory was insured with respondent No. 5/Insurance Company. Learned Commissioner held the said death arose out of and during the course of employment; but held that since the non—applicant No. 2 is not owner of the said premises and the person insured under the policy is one Mr. Ramkishan Agrawal, awarded compensation against the appellant exonerating the Insurance Company from its liability to pay compensation. Shri Tiwari, learned counsel for the appellant would contend that respondent No. 1 to 3 have erred in impleading the appellant as owner of industry, even the written statement filed by the said industry was by the owner i.e. appellant’s father Ramkishan Agrawal. The said deceased employee was insured under the workman compensation policy issued by respondent No. 5/Insurance Company but mainly because the appellant was impleaded as a party in the case, learned Commissioner has exonerated the respondent No. 5 from its liability to pay compensation. 1n this View of the matter, since the fact available on record @ reveals that the said deceased was insured under the policy, the appellant’s father was the employer, the learned Commissioner has erred in fastening the liability upon the appellant, exonerating the Insurance Company. On the other hand, Shri Anurag Jha, learned counsel appearing for respondents No. 1 tov-3 would contend that it appears that due to mistake committed by the respondents, the appellant has been impleaded as party respondent in place of Ramkishan Agrawal and in such a situation, the instant matter requires to be remitted back to the Commissioner for decision afresh after permitting the respondent No. 1 to 3 to amend their claim petition by amending proprietor’s name of respondent No. 2. Shri Nande, learned counsel appearing for respondent No. 5 would contend that learned Commissioner has rightly exonerated the Insurance Company from its liability to pay compensation and the award impugned deserves to be upheld. I have heard learned counsel for the parties, perused the impugned award and the record of the Commissioner. A bare perusal of the record would reveal that the employer of the deceased was Quality Steel, written statement was filed by the proprietor of the said factory and not by the appellant. This fact is not in dispute that the said factory was insured by respondent No. 5 but only due to the mistake committed by the respondents No. l to 3 in impleading the appellant in place of Ramkishan Agrawal, learned Commissioner has exonerated the Insurance Company from its liability to pay compensation. It is also clear that the appellant not being employer of the deceased cannot be held responsible for payment of compensation. In that View of the matter, in the considered opinion of this Court, this matter requires remand. 4 ( 10. In View of above, the instant matter is remitte u for decision afresh to the Commissioner and it is directed that the Commissioner shall permit respondents No. 1 to 3 to amend the claim petition and to implead the actual proprietor of the said factory in place of the appellant and thereafter to proceed to decide the matter afresh in accordance with law. 11. The parties are permitted to adduce additional evidences, if so advised, 12. The observations, if any, made hereinabove, shall not be construed as the opinion of the Court on merit. 13. The appeal is allowed to the above extent. No order as to costs. 14. The Registry is directed to send back the record, requisitioned from the Commissioner, forthwith. Sd/- N.K.Agarwa1 Judge