1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4499 /2010 (Smt.Leela wd/o Laxman Kalkar and others vs. Sanjay Anandrao Moghe ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : NOVEMBER 30, 2010. Heard Advocate DCR Mishra for the petitioner/claimant ; Mr Manoj Rajan, Advocate for Respondent No.1 and Advocate A.H.Patil for respondent no.2. This Court has already issued notice for final disposal. By the impugned order, the Commissioner under Workmen's Compensation has rejected the application of petitioners to implead Raju s/o Anandrao Moghe as his employer in proceedings i.e. WCA No.10/2005. The Labour Court has found that said Raju was earlier joined and deleted. According to Advocate Mishra, the amendment has been sought after getting knowledge that the said Raju is the owner of the tipper and, therefore,the employer of the deceased. Respondent no.1 presently before the Commissioner, is the real brother of said Raju. Advocate Manoj Rajan pointed out that the proceedings were initially filed against Raju but then by moving an application for amendment Raju was deleted and present respondent no.1 i.e. Sanjay Moghe came to be 2 added. He further states that now he Workmen compensation proceedings are at a judgment stage. If petitioners has got any claim against said Raju, the petitioners can institute fresh proceedings but then respondent no.1 cannot be allowed to be persecuted. Advocate A.H. Patil states that he is appearing for Insurance Company and is adopting the arguments of Advocate Manoj Rajan. Mr Manoj Rajan,Advocate has at this stage pointed out that relationship between Respondent no1. and said Raju has not been disclosed in the amendment application. The effort of the legal heirs of deceased who was working as a Driver on truck and tipper, is to secure compensation for accidental death. Initially they joined Raju s/o Anandrao Moghe as respondent no.1 before the Commissioner. Later on, he was deleted and present Respondent no.1 Sanjay Anandrao Moghe came to be substituted. Parties then led evidence and thereafter because of that evidence, the claimants have moved the present application for amendment. They have mentioned that Sanjay specifically deposed that deceased Laxman was working as Driver of Tipper No. MH 29/ 8163; therefore, effort is to join owner of the tipper as party respondent. It is not the case of present respondent no.1 that he had disclosed the fact of Raju being owner of that tipper in his written statement. In this situation, looking to the nature of proceedings filed, I am not in a position to accept the order passed by Commissioner under Workmen's 3 Compensation. The proceedings have been filed in 2005 and petitioner has specifically alleged that Raju s/o Anandrao Moghe is brother of Sanjay Anandrao Moghe. The proceedings were initially filed against right person and for reasons best known, that person was deleted and Sanjay Moghe came to be added. Effort of respondent no.1 seems to shield the real owner and to delay the disposal of Workmen' Compensation case. In welfare and benevolent jurisdiction, such an effort cannot be permitted to succeed. The impugned order dated 6.7.2010 is, therefore, quashed and set aside. The application for amendment as modified by the petitioners vide Exh. 57 is granted. Necessary amendment be carried out before the Commissioner under Workmen's Compensation by 20.12.2010. The said Commissioner thereafter shall proceed further in the matter in accordance with law. Rule is made absolute accordingly. No costs. JUDGE sahare.