1 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi and others. vs. Rakesh Kumar Demla and another. Date : 5.2.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.G Vaishnav, for the appellants. Mr.SG Ojha, for the respondent no.1. Mr.Arun Bhansali for Mr.PK Bhansali, for respondent no.2. - - - - - Heard learned counsel for the parties and perused the record. The appellants/claimants are aggrieved against the award of the Workmen's Compensation Commissioner, Udaipur dated 28.10.1987 passed in claim case no.33/84 as the appellants' claim petition was rejected by the Workmen's Compensation Commissioner after holding that the appellants failed to prove that deceased Shanti Lal died during the course of employment by accident. 2 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. Brief facts of the case are that originally the claim was filed against M/s. Narendra & Company and its partners – Shree Chand and Dharam Pal alleging that deceased Shanti Lal was appointed driver for M/s. Narendra & Company for driving Truck No.RSJ 1727 on salary of Rs.800/- per month with annual allowance of Rs.150/-. On 22.5.84, during the course of employment, deceased Shanti Lal went to give a demand draft to Bharat Petroleum Co. Ltd. which was of his employer M/s. Narendra & Company. He was going with one more employee but both were on separate scooters. During that travel, Shanti Lal's scooter was hit by one Hero Majestic which was being driven by Shanker Lal Paliwal because of which victim Shanti Lal fell down and due to hemorrhage, he died in the hospital on 26.5.84. Notices were issued to above referred M/s. Narendra & Company and its partners and they submitted reply stating that the truck no.RSJ 1727 was not belonging to them. On this, the appellants submitted application to implead respondent no.1 Rakesh Kumar as party in the claim case stating that the deceased was employee of Rakesh Kumar as a driver for truck no.RSJ 1727 and it was insured 3 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. with the respondent no.2. Notice was issued to Rakesh Kumar who submitted reply and stated that he was owner of truck no.RSJ 1727 and he employed Shanti Lal as driver for the said truck. He also stated that the vehicle was insured. The respondent no.1/non- applicant no.4 also submitted that he has no office nor deceased Shanti Lal was given any work of office. He also stated that he has no connection with Bharat Petroleum Co. Ltd. so as to assign his any work to the deceased for handing over the draft of M/s. Bharat Petroleum Co. Ltd. Meaning thereby, the respondent no.4 denied the death of victim during the course of his employment. Before the Workmen's Compensation Commissioner, Smt. Shanti Devi, widow of Shanti Lal stated that deceased was working with Rakesh Kumar for the salary mentioned above and was appointed as driver of the truck referred above. She was not the eye witness to the incident nor she had knowledge that for what purpose, deceased Shanti Lal was going on the scooter but in view of the admission of the non-applicant no.4 Rakesh 4 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. Kumar, it is fully proved that Shanti Lal was working on truck no.RSJ 1727 on 22.5.84 i.e. on the date of accident because of which he died on 26.5.84. The question remains is whether Shanti Lal died during the course of employment or not ? Since the original case of the claimants was that the deceased was going to Bharat Petroleum Co. Ltd. for delivering the draft of M/s. Narendra & Company and that too on the scooter of M/s. Narendra & Company, therefore, it was heavy duty upon the claimants to prove that yet Shanti Lal was discharging any service for the respondent Rakesh Kumar but contrary to discharging that duty, from evidence, it is proved that the claimants tried to change their stand by saying that deceased Shanti Lal died when he was taking the documents of the truck for delivery. The manner in which the accident occurred was also differently stated in the evidence than the stand taken by the claimants in the original claim petition and, therefore, it appears that the unfortunate death of Shanti Lal sought to be converted into death during the course of 5 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. employment of Rakesh Kumar. Even if earlier stand is ignored, then also, the claimants failed to prove that the deceased was going to Udaipur with the documents of any vehicle of Rakesh Kumar as they failed to prove that Rakesh Kumar had any office where he could have sent deceased Shanti Lal. Though whether the deceased died in the course of employment was a question of fact, yet it has been examined by this Court only to see whether any injustice has been done to the claimants because of their inadvertent negligence in presenting their case. It is clear from the original plaint itself that the claimants were aware that on which truck, the deceased was working. The truck was in the ownership of the respondent Rakesh Kumar who had no connection with the originally impleaded non- applicants no.1 to 3, then the claimants changed their stand to show that the deceased died while working for and on instruction of Rakesh Kumar. That fact cannot be ignored as there is no explanation under what circumstances, the claimants pleaded that the deceased died while 6 S.B. Civil Misc. Appeal No.183/1988 Smt. Shanti Devi & Ors. vs. Rakesh Kumar Demla & Anr. taking the documents of the respondent no.4's Rakesh Kumar's office. In view of the above reasons, I do not find any merit in this appeal. Consequently, this appeal is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya