In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.693 of 2008 (O&M) ..... Date of decision:15.11.2011 Sukhminder Singh .....Appellant v. Baljit Kaur and another .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Ashok Singla, Advocate for the appellant. Mr. Gopal Singh Nahel, Advocate for respondent No.1. Mrs. Sonia G. Singh, Advocate for respondent No.2. ..... Mohinder Pal, J. This is an appeal against the order of Commissioner, Workmen's Compensation Act, 1923 and Assistant Labour Commissioner, Sangrur (hereinafter referred to as `the Commissioner') vide which the present appellant has been held liable to pay the compensation on account of death of Iqbal Singh alias Ghudi, who has died in accident while working as driver. The mother of the deceased Iqbal Singh filed the petition on the ground that her son was working as a driver under the employment of respondents. In the month of February 2004, he was driving the Harvester Combine bearing registration No.PB-63-8783 which met with an accident F.A.O. No.693 of 2008 (O&M) [2] near Village Pathke, Police Station Marath (U.P.), District Lalitpur as a result of which he died on the same day. Post-mortem was conducted in the hospital at Lalitpur. At the time of accident, her son was unmarried and was drawing wages at the rate of `3,000/- per month. It is further submitted that a legal notice dated 17.3.2004 was served upon the respondents but did not elicit any response and as such both the respondents were jointly and severally held liable to pay the compensation. The claimant prayed for compensation to the tune of `3,77,830/- along with penalty to the extent of 50 per cent of the compensation and interest at the rate of 12 per cent per annum w.e.f. 24.3.2004 till payment. After notice, respondent No.1-Dalbara Singh alias Darbara Singh Sekhon (respondent No.2 herein) denied the relationship as master and servant with the deceased and further denied that said Harvester Combine was registered in his name. He also denied the receipt of notice and raised objections on the ground of jurisdiction, maintainability and non- joinder of necessary parties. Respondent No.2-Sukhminder Singh (appellant herein) represented by his LRs was served with the registered notices, however, the same received back with the report of refusal and accordingly he was proceeded ex parte. The tribunal framed issues, recorded evidence and accordingly held respondent No.2 i.e. Sukhminder Singh (appellant) liable to pay the compensation as claimed by the mother of the deceased along with interest at the rate of 12 per cent per annum w.e.f. 25.10.2004 till the date of payment. He was further held liable to pay the penalty to the tune of 10 per cent of the amount of compensation. However, it was ordered that respondent No.2 was free to recover this F.A.O. No.693 of 2008 (O&M) [3] amount from respondent No.1 (respondent No.2 herein). Aggrieved from this order, respondent No.2-Sukhminder Singh has come in appeal. I have heard learned counsel for the parties. Learned counsel for the appellant has submitted that respondent No.2-Dalbara Singh was employer of the deceased Iqbal Singh and as such the compensation under the Act could have been awarded only against Dalbara Singh and not against the appellant-Sukhminder Singh, who was not the employer of Iqbal Singh at any point of time and under the Act only the employer was responsible to pay the compensation. It was also argued that the claimant-Baljit Kaur (respondent No.1 herein) has submitted in her claim petition that Iqbal Singh at the time of accident was under the employment of Dalbara Singh against whom the claim was originally lodged and this fact was clear from the notice dated 17.3.2004 which has been issued under Section 10 of the Act appended as Annexure.A.1 with the claim petition. Similarly, affidavit (Annexure-A.2) filed by the claimant also corroborated the fact that her son was under the employment of Dalbara Singh. Finally, it has been argued that after summoning of Sukhminder Singh-appellant, no evidence has been recorded and in the previous evidence recorded before summoning of this person nothing has been said regarding employment of the deceased with Sukhminder Singh and as such he was not liable to pay the compensation. On the other hand, counsel appearing on behalf of respondent No.2-Dalbara Singh has submitted that the Harvester Combine including the tractor was under the ownership of Sukhminder Singh and and he has rightly been held liable to pay the compensation amount. I have given my anxious consideration to the submissions of F.A.O. No.693 of 2008 (O&M) [4] learned counsel for the parties. It will be relevant to mention here that the original claim petition (Annexure-A.2) has been filed against Dalbara Singh only. This claim petition has been filed and verified on 4.4.2004. Even before filing of claim petition, a notice dated 17.3.2004 under Section 10 of the Act has been issued to Dalbara Singh alias Darbara Singh Sekhon wherein it has been mentioned that son of the deceased was working as driver under his employment who met with an accident on 24.2.2004. It is only later on that too after the recording of the evidence in the year 2005 that the present appellant has been impleaded as one of the respondents and amendment has been made in the petition. However, since the appellant was proceeded against ex parte so the evidence recorded prior to his summoning has been taken into consideration by the Commissioner while passing the award. A perusal of this evidence shows that the witness Channa Khan (AW-1) has stated in so many words that the deceased was under the employment of Dalbara Singh. The only evidence recorded after the summoning of the appellant is that of Bachan Singh (RW-1), Village Lambardar, who has stated that the deceased was under the employment of the present appellant. The evidence of this witness is in contradiction to the averments made in the original claim petition which is supported by an affidavit. It is a matter of fact that the present appellant has not been able to get the opportunity to cross-examine the witnesses who have deposed against him as he has been summoned later on and has been proceeded against ex parte. It is not difficult to imagine a situation in which the original claim petition has been filed against Dalbara Singh and later on has been amended. The claimant is the only person who should have informed F.A.O. No.693 of 2008 (O&M) [5] as to who was his employer and from whom the deceased was getting salary every month. All these things require reconsideration. Under these circumstances, I am left with no other option except to set aside the impugned order and remand this case back to the Commissioner, Workmen's Compensation Act, Sangrur with a direction to afford an opportunity to the present appellant to cross-examine the witnesses who have deposed against him in order to ascertain whether the deceased was under his employment at the time of accident and death. Since there is no dispute regarding assessment of compensation amount and dispute is only as to who will pay this amount, the amount assessed by the Commissioner will remain the same. In order to safeguard the interests of the claimant, it is ordered that half of the amount of compensation as assessed by the Commissioner will be deposited by respondent No.2-Dalbara Singh with the Commissioner forthwith. However, the remaining amount will be paid after the decision of the Tribunal and after appreciating the evidence brought on record by the parties. The amount if deposited will be disbursed to the claimant without any delay. Anything said while passing this order will not affect the merits of the case. Since the matter is already very old, the Commissioner will make every effort to dispose of the same within a period of two months from the date of receipt of copy of this order. As the counsel for all the parties are present in the court, the parties are directed to appear before the Commissioner on 1.12.2011. No separate notice shall be issued to the parties. F.A.O. No.693 of 2008 (O&M) [6] The appeal stands disposed of and the case is remanded accordingly. November 15, 2011. (Mohinder Pal) Judge *hsp*