IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No. 129/2004 Reserved on:14.8.2008 Decided on:8.9.2008 Nokh Ram. …Appellant. Versus Bimla Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Appellant : Mr. Karan Singh Kanwar, Advocate vice Mr. Bimal Gupta, Advocate. For the Respondents : Mr. Lovneesh Kanwar, Advocate for respondents No.1 and 2. Rajiv Sharma, J. This FAO has been filed against the order dated 7.1.2004 passed by the Commissioner under the Workmen’s Compensation Act, 1923 in case No.4/2001. The brief facts necessary for the adjudication of this appeal are that late Sh. Vijay Kumar son of respondents No.1 and 2 while working in the Katha manufacturing unit of the appellant died due to electric shock on 25.3.2000. He was employed by the appellant as a labourer on salary of Rs. 2,000/- per month. The deceased was unmarried and left behind his 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 parents i.e. respondents No.1 and 2. The appellant and proforma respondent filed reply(s) to the petition preferred by respondents No.1 and 2 (hereinafter referred to as ‘the claimants’ for convenience sake). The learned Commissioner framed the following issues: i. Whether the deceased was a workman within the meaning of the Act? OPP ii. Whether the accident arose out of or in the course of his employment? OPP iii. Whether the amount of compensation claimed is due or any part of that amount? OPP iv. Whether the opposite party is liable to pay such compensation as is due? OPP v. Relief. The findings of the learned Commissioner on the aforesaid issues are as under: i) Yes. ii) Yes iii) Yes. iv) Yes v) As per operative part of the orders. The learned Commissioner on the basis of the evidence led by the parties awarded a sum of Rs.3,12,155/- vide order dated 7.1.2004. The appellant has assailed the order dated 7.1.2004. The appeal was admitted by this Court on 29.4.2004. As per section 30 of the Workmen’s Compensation Act, 1923, the appeal could be admitted only on the substantial question of law. The substantial questions of law were framed by the appellant at page 8 of the paper book. However, it appears that inadvertently these substantial questions of law were not brought to the notice of the Court at the time of the admission of the appeal. In the interest of justice, the present appeal is deemed to have been admitted on the substantial questions of law framed by the appellant. 3 Mr. Karan Singh Kanwar, Advocate appearing vice counsel for the appellant had strenuously argued that the order dated 7.1.2004 is not sustainable in the eyes of law. Mr. Lovneesh Kanwar, Advocate appearing on behalf of respondents No.1 and 2 has supported the order dated 7.1.2004. I have heard the learned counsel for the parties and have also perused the record carefully. Since all the substantial questions of law are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. The first question which is required to be considered by the Court is: whether there is no compliance of rules 23 and 25 of the Workmen’s Compensation Rules, 1924. Rule 23 and 25 are procedural in nature. Rule 23 provides that on receiving application of the nature referred to in section 22-, the Commissioner may examine the applicant on oath, or may send the application to any officer authorized by the State Government in this behalf and direct such officer to examine the applicant and his witnesses and forward the record thereof to the Commissioner. Rule 25 provides for preliminary inquiry into the application. In the reply to the claim petition, no such objection has been raised by the appellant. The appellant is precluded from raising new plea which was not taken before the learned Commissioner in the present appeal. Claimant Smt. Bimla Devi appeared as PW-1. She has deposed that her son was getting Rs. 2,000/- per month as salary. PW-2 Bal Krishan has supported the version of PW-1. He has also deposed that deceased Vijay Kumar was getting a salary of Rs. 2000/- per month. The appellant has deposed in his statement that he was paying Rs. 800/- to Vijay Kumar. In view of the statements of PW-1 and PW-2, the learned 4 Workmen’s Commissioner has come to a just conclusion that the deceased was getting a salary of Rs. 2,000/- per month. Mr. Karan Singh Kanwar, Advocate has also argued that the claimants have failed to prove that they were dependent on the income of the deceased. In the claim petition, it is specifically averred that the deceased was unmarried and the claimants were dependent on the income of the deceased. PW-1 in her statement has deposed that after the death of her son they are living in poverty. in view of the specific pleadings read in conjunction with the statement of PW-1, the claimants have conclusively proved that they were dependent on the income of the deceased. Mr. Karan Singh Kanwar has lastly drawn the attention of the Court to the agreement Ex.P-1 whereby the appellant had paid a sum of Rs. 50,000/- to the claimants. This fact is not disputed by Mr. Lovneesh Kanwar. Accordingly, a sum of Rs. 50,000/- is to be adjusted from the final amount. In view of the aforesaid reasoning, the appeal is partly allowed to the extent that a sum of Rs. 50,000/- already paid by the appellant to the claimants vide Ex.P-1 is liable to be deducted from a sum of Rs. 3,12,155/- The rest of the order dated 7.1.2004 is upheld. There shall be no order as to costs. 8.9.2008 (Rajiv Sharma ), J. *awasthi*