IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No. 147/2006 Date of Decision: 15th March, 2010. Baldev Singh & another …Appellants. Versus: Ramesh & others. …Respondents Coram: The Hon’ble Mr.Dev Darshan Sud, Judge. Whether approved for Reporting?1 . For the appellants: Mr.Sharwan Dogra, Advocate. For Respondent-1. Mr. G.R Palsra, Advocate. Dev Darshan Sud, J(Oral) . The appellants-respondents are aggrieved by the award of the learned Motor Accidents Claims Tribunal, Mandi, thereby allowing the claim of the respondent-claimant Ramesh Chand for a sum of Rs. 87,000/- with interest @ 7.5% per annum, from the date of filing of the claim petition till its realization. 2. The case set out by the claimant was that on 18.10.1997, he was sent by his employer respondent No. 1 (before the trial Court) alongwith tractor No. HPM-7203 to Bhanubari with the driver to cultivate the fields of the respondents. Respondent No. 3 Kali Dass was ploughing the field by driving the tractor in a rash and negligent manner with the result that the claimant fell down and his right hand was compressed in the plough spring resulting in amputation of his 1 Whether reporters of Local Papers may be allowed to see the judgment? thumb. The index finger of the claimant was also shortened. This was attributed to the rash and negligent driving of respondent Kali Dass. 3. The case further pleaded is that the claimant was shifted to the Civil Hospital, Sundernagar where he remained admitted till 18.10.1997 and was again re-admitted from 5.11.1997 and was discharged on 18.11.1997. He incurred a sum of Rs. 10,000/- as expenditure on his treatment. Prior to his being admitted in the hospital, he was employed and working as a carpenter with the respondents and was also earning his livelihood by doing agricultural work. At the time of the accident, he was 33 years of age and earning about Rs. 3,000/- to 5,000/- per month. 4. Earlier a petition for award of compensation had been filed before the Commissioner under the Workmen Compensation Act, Sundernagar. This petition was dismissed as withdrawn and opportunity was sought to institute a fresh petition before the Tribunal. The respondents petitioners herein have denied the liability. They have emphatically denied that there was any industry in the name of M/s Vishal Industries, Dhanotu, where the claimant was employed. In these circumstances, there was no question of sending the claimant on 18.10.1997 to plough the fields of the respondents. 5. On the evidence on record, the Tribunal on the statement of PW-1, (petitioner) Ramesh Chand, PW-2 Joginder and PW-3 Ram Singh, held that the accident was in fact caused while the claimant- respondent was in the employment of the respondents. In these circumstances, the claim of the petitioner was allowed. The Tribunal also holds that the respondent No. 3 Kali Dass was not holding any valid licence and he admitted this fact while he appeared as RW-2 stating that he does not know driving nor was employed as driver by the respondents No. 1 and 2. 6. Learned Counsel appearing for the appellants- respondents submits that the judgment of the learned Court below is against facts on record. There was no evidence to show that respondent Kali Dass was driving the tractor or was working with the respondents as driver and had been deputed to drive the tractor. In fact, the story put up by the claimant is not supported by any evidence on the record. It was not established on the record that there was land which had been ploughed by the tractor or that Kali Dass and the claimant had been deputed to plough such land. In fact, there is no evidence on the record to show that the claimant was employed by the respondents. Learned Counsel for the appellants has taken me through the entire evidence on the record. 7. It is undisputed before me that prior to the institution of the present petition, the respondent-claimant had preferred a petition in the Court of the Commissioner under the Workmen Compensation Act, claiming compensation of the same injury. That petition was instituted in the year 1998 and withdrawn on 1.7.2003. Reason for withdrawal has been simply that the petitioner wants to pursue the remedy under the Motor Accident Claims Tribunal. On the record, I have found that a number of witnesses had been examined in the case both by the petitioners and by the respondents. Why the case was withdrawn, is not clear. However, without going into that aspect of the matter, the case of the petitioner as sought to be established from the evidence, is that he was employed as a carpenter and was working in the carpenter shop. He was also made to work on tractor No. HPM-7203. In cross- examination, he states that he does not have any record to show as to where he was actually employed by the respondents. In a specific question in cross-examination, he says that two witnesses, namely, Ram Singh, S/o Shri Godayar and Ram Singh, S/o Jiunu were his witnesses. They were, however, the witnesses in the case before the Workmen’s Compensation Commissioner. PW-2 is Joginder Singh, who states that on the fateful day, he saw the claimant sitting on the cultivator of the tractor. He sustained injuries. Blood started oozing from his hand, which was wrapped with a ‘Dupatta’ of a lady. Thereafter the driver of the tractor took the petitioner-claimant to the hospital for treatment. PW-3 Ram Singh, S/o Jiunu says that the petitioner was employed as a carpenter in the shop of the appellants. RW-1 Baldev Singh states that he does not own Vishal Industries and never employed the claimant. In the cross-examination, he denies that he owns any land in the village where the tractor was reportedly sent for ploughing fields. RW-2 Kali Dass has stated that he does not know driving of any vehicle nor he was employed as a driver by the owners. This is the entire evidence. The other evidence relates to the injuries sustained by the claimant. 8. The evidence on record shows that the learned Tribunal has been speculative in arriving at the conclusion that the claimant sustained injuries, while he was employed by the respondents. There is nothing on the record to show that the petitioner was employed by the respondents or that the respondents had any carpenter shop or any piece of land. There is no evidence on the record to show that the respondents at any time employed respondent No. 3 Kali Dass as a driver. Though, the right of the claimant to pursue a remedy before a Tribunal where he would gain better compensation, cannot be foreclosed, but at the same time, it is indeed strange that when the case put up before the Commissioner was at the stage of arguments, the case was actually withdrawn and a petition was instituted before the learned Motor Accident Claims Tribunal. What is required to be adjudicated is that Joginder Singh, who is a so-called witness, was never examined by the Commissioner, although the case is that he had actually rescued the claimant. The medical evidence on which reliance has been placed by learned Counsel for the claimant, also does not support the case of the claimant. Ext. P.A., which is the O.P.D slip, only states that claimant is the victim of a tractor accident. There is also nothing on the record to establish the identity of the tractor, which was involved in the accident. PW-2 Joginder also states that the hand of the injured was tied/banded with a ‘Dupatta” of a lady, but she has not been examined as a witness. 9. In these circumstances, I hold that there is no evidence on the record to establish that the petitioner met with an accident involving the tractor of the respondents. As held by me, the learned Tribunal has been speculative. In these circumstances, this appeal is allowed. The judgment of the Tribunal is quashed and set aside. (Dev Darshan Sud), March 15, 2010 Judge. (HL)