IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (WCA) No. 218 of 2004 Reserved on :16th October, 2008 Date of Decision: 23rd October, 2008 Paras Ram Sharma Appellants Versus Rajbnash Singh and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Ms. Devyani Sharma, Advocate. For respondent No.2: Name deleted vide order dated 16.4.2007. For respondent No.3: Mr.G.C.Gupta, Sr. Advocate, with Mr.Mohinder Gautam, Advocate. Sanjay Karol, J. The claimants have assailed the impugned award dated 24th June, 2002, passed by Commissioner, Workmen’s Compensation Act, Rajgarh, District Sirmaur, H.P., dismissing the claim petition filed by the parents of deceased Shri Vinod Kumar alias Raju. A petition under the Workmen’s Compensation Act, 1923 (hereinafter referred to as the Act) was filed by the claimants-appellants herein, on the ground that their son Shri Vinod Kumar employed as a Conductor by Shri Rajbans Singh and Shri Surinder Singh, owners of Whether the reporters of Local Papers are allowed to see the Judgment? 2 vehicle No. HP-14-1085, died in an accident on 9.2.1998. Vinod Kumar, at the relevant time was discharging the duties of a conductor/cleaner and drawing salary of Rs.2000/-. The owners inspite of service chose not to cause appearance and were proceeded ex parte, but, however, the Oriental Insurance Company, the Insurer of the vehicle in question filed its reply inter alia taking preliminary objections that in the absence of any proof of privity of contract; valid Insurance policy and the driver not possessing a valid driving licence, no liability could be fastened on the Insurer. Based on the pleadings of the parties, the following issues were framed:- 1. Whether the applicant is entitled for the compensation as prayed for? OPP. 2. Whether the Insurance Policy of Vehicle was not valid? OPR 3. Whether the driving licence of vehicle was not valid? OPR. 4. whether the salary of the deceased was Rs.2000/- P.M.? OPP. 5. Relief. To prove their case, claimant No.1 examined himself as PW- 1 and his statement was recorded twice i.e. on 25.5.2000 and 20.5.2002. The statement of ASI Raj Kumar (PW-2), Police Station Ambala was also recorded on 26.2.2002. No evidence documentary or oral was led by the respondent-Insurance Company. Based on the evidence led by the parties, while deciding Issue No.1 Commissioner held that the petitioner had failed to satisfy that the deceased Vinod Kumar died on 9.2.1998 in an accident of vehicle No. 3 HP-14-1085. The findings were based on four reasons, firstly, the claimants had not deposed with regard to handing over of the body of the deceased and cremation carried out by them, secondly, the claimants had failed to exhibit photograph Ext. PW-1/C in the statement recorded on 25.5.2000, thirdly, the claimants had failed to tender the post-mortem report in evidence and fourthly, from the report of the Investigation carried out by the police pursuant to the registration of an FIR, it could not be inferred that one of the deceased persons was Vinod Kumar son of the claimants. In view of the decision on issue No.1 against the claimants, Issues No.2,3 and 4 were not decided as having become infructuous. The appeal was admitted on the following substantial questions of law:- “1. Whether the learned Commissioner is right in dismissing the claim petition of the appellants on the ground that the appellants had failed to prove that deceased Vinod Kumar died in the accident of vehicle No.HP-14-1085 on 9.2.1998 by misconstruing the documents Exts.PW1/A, PW1/B, PW2/A and Exts.PB and PD? 2. Whether the learned Commissioner is right in not drawing an adverse inference against the employer as required under Section 114(g) of the Indian Evidence Act? 3. Whether the learned Commissioner is right in not taking into consideration the record produced by the police in the form of Ext.PW-2/C and statement of PW2 in its right perspective? 4. Whether the learned Commissioner is right in not giving findings on issues No.2 to 4? 4 5. Whether the learned Commissioner is right in not holding the insurance company liable for the payment of compensation who has failed to lead any evidence on record in support of its findings?” I have heard the learned counsel for the parties and also perused the record. In the claim petition, the claimants clearly mentioned that their son Vinod Kumar was discharging his duties as Conductor. Complainant Shri Paras Ram Sharma (PW-1) in his statement recorded on 20.5.2000, has clearly stated that for more than a period of one year his son Vinod Kumar was employed as a Conductor with respondents No.1 and 2 on Vehicle No. HP-14-1085. On 9.3.1998 having learnt about the accident he telephonically enquired from the owners about the same, who were evasive and did not give any clear response. Later when he went to meet them he was told that on 9.2.1998 their vehicle had met with an accident at Malana, District Ambala, Haryana, and in the said accident the boy had died. The death took place at the spot. Having learnt about the same, he visited the Police Station at Malana where the police handed over the photographs of his son Ext.PW-1/A and Ext.PW/1-B. The vehicle was got released by the owners, who did not inform him about the accident. The age of his son was 18 years and no compensation was paid on account of his death. In the said accident, even the driver of the vehicle expired. At the time of accident his son was on duty as a Conductor. Vinod Kumar used to give his entire salary of Rs.2000/- per month to them and on himself spent Rs.30 which he was getting extra on daily basis. His son being the only earning hand, the entire family including the other children would survive on the same. Importantly, there is no cross-examination on the point that the 5 deceased was employed with respondents No.1 and 2. The identity of the deceased, being the same person whose photographs were exhibited was also not disputed as there was no cross-examination also on this point. It appears that the claimant moved an application under Order 18 Rules 17 and 17A, CPC for the reason that the police file pertaining to the investigation of the criminal case was not on record and, therefore, the applicant was permitted to file fresh documents and lead fresh evidence. Consequently, he was re-examined on 20.5.2002 when further he deposed that after filing the claim petition he learnt about the particulars of the Insurer, who were arrayed as party and the Insurance cover, was exhibited by him as Ext.PB. He deposed that Vinod Kumar was also known as Raju and in the post-mortem report the address of the deceased was wrongly mentioned as there is no village by the name Moss in P.O. Rajgarh, District Sirmaur, H.P. The dead body was received by the owners of the vehicle. He clarified that the photographs were given to him by the police when he had gone to enquire about his son’s death. Out of two dead bodies shown in the photograph (Ext.PC), he identified one to be that of his son, who died in the accident in question. Inquest report and the receipt of the dead body from the police Ext.PD was also proved on record. Importantly, this witness has not been cross-examined at all except for a Court Question, as to why in his first statement he had not disclosed the name of his son as Raju, to which he clarified that it slipped his attention and he was confused at that time. Importantly, the Insurance Company has not led any evidence whatsoever. The owners refused to participate in the proceedings 6 inspite of service. Even in the present appeal, they have chosen to remain ex parte. Police record indicates that FIR was registered at the instance of Shri Amar Singh, driver of the other truck with which the vehicle in question met with an accident, in which three persons died at the spot and only he survived. Obviously, he was not aware of the particulars of the deceased. The accident took place in District Ambala, State of Haryana, whereas the deceased and the claimants were residents of Village and P.O. Leu Nana, Tehsil Rajgarh, District Sirmaur, H.P. The owners of the vehicle were residents of Patiala (Punjab). The owners obviously have not played a positive role in the whole episode. They have failed to disclose about the occurrence of the accident to the claimants. The Investigating Officer, therefore, could not have learnt about the exact name, parentage and the address of the deceased and acted only on the basis of information obtained by him during investigation. Importantly, the owners perhaps deliberately, chose not to participate in the proceedings. The exact information could have been furnished only by them or ascertained after visiting the claimants’ village. Importantly, Ext.PW-2/C shows the name of deceased Raj Kumar alias Raju son of Shri Shym Lal, resident of Moss, PO Rajgarh, District Sirmaur, H.P. In terms of this document the body was handed over to the owners for further handing it over to the parents of the deceased. The claimant No.1 has deposed that the owners not only were evasive but did not inform the exact particulars and details of the accident. The claimants No.1 has also disposed that there is no village Moss in PO Rajgarh, District Sirmaur. As has been noticed above, there is no cross-examination on this point. 7 It is to be taken into account that the claimants, being illiterate villagers, living in remotest corner of the State of Himachal Pradesh have sufficiently explained as to why the name of his son Vinod Kumar alias Raju was not disclosed earlier, he was puzzled, perhaps not even aware that the same was required to be disclosed. PW-2, posted as ASI, P.S. Malana, District Ambala, has proved registration of FIR No. 76 dated 10.2.1998 (Ext.PW-2/A) and has stated that three persons died in the accident of vehicle No.HP-14-1085. Photographs exhibited by PW-1 have been proved from the police record. Importantly, the deceased has been identified through photographs Ext.A, Ext.B and Ext.C. It is not the case of the Insurance Company that some another person also lodged a claim petition claiming compensation. Even the claimants have not filed any other claim petition. The Insurance Company did not lead any evidence. The out come of the criminal proceedings was not brought on record. For the aforesaid reasons, in my view, there can be no dispute with regard to the identity of the deceased Vinod Kumar alias Raju, who died in an accident arising out of and in the course of the employment. The Commissioner has seriously erred in dismissing the claim petition for the reason that the claimants failed to disclose whether they had cremated the body. This is not the requirement of law. It is sufficiently proved that the employee had died in the course of discharge of his duties which in the present case duly stands proved. It is true that post- mortem report does not disclose the name of the deceased to be Vinod Kumar or the address of the deceased to be that of the claimants. But, however, as has been noticed hereinabove, the police investigation was 8 carried out by an agency outside the State based on the information given by the third party, who was not aware of the address of the deceased. Therefore, the reason given by the Commissioner is erroneous and needs to be set aside. In my view, the appellants have proved that Vinod Kumar alias Raju died in the accident on 9.2.1998 in Vehicle No. HP-14-1085, which is sufficiently proved by Exts.PW-1/A, Ext.PW-1/B, Ext.PW-2/A and Exts.PB to PD (investigation record). The Commissioner has wrongly appreciated the material and not considered the same in its correct perspective. The owners have deliberately and malafidely withheld the evidence and chosen not to produce the same as it would have been unfavourable to them, therefore, adverse inference has to be necessarily drawn against them. The findings of the Commissioner on Issue No.1 are set aside and it is held that the claimants are entitled to compensation. The questions of law are answered accordingly. The Commissioner ought to have decided all the issues. Ordinarily, the matter ought to have been remanded back for decision on the other issues. But, however, I am not inclined to do so. The matter is pending since May, 1999. Poor, illiterate and aged claimants are waiting for the decision of the matter. No further evidence is to be lead by any person. Interests of justice would be met, if the other issues are also decided here. From Insurance policy Ext.PB and also line of cross- examination, it is not in dispute that the vehicle in question was insured. No evidence has been led by the Insurance Company and nothing is shown that driving licence of the driver driving the vehicle at the relevant time was not valid. Issue No.3 is decided accordingly. 9 With regard to Issue No.4 from the statement of PW-1, it is evident that deceased was drawing a salary of Rs.2000/- per month. No doubt, there is no document to prove the same. The Insurance Company has not disputed the factum of employment as is evident from the cross- examination. Importantly, the parents are old and illiterate residing in the remotest corner of the State of H.P. The receipt of salary obviously would not be with the claimants and is bound to be with the owners who have chosen not to contest the proceedings. The accident took place in the year 1998 when the salary of daily waged employee was approximately Rs.60/- per day. Therefore, it can be safely be held that the deceased would have been receiving salary of Rs.2000/- per month. It has been explained that entire salary was being handed over to the claimants as the deceased was managing on the extra payment of Rs.30/- per day being paid by the owners. Therefore, in my view, the salary of the deceased for the purpose of determination of compensation under the Act can be safely taken to be Rs.2000/- per month. The age of deceased being 18 years, the relevant factor as per Schedule IV, would be 226.38. The claimants, therefore, be entitled to the following compensation under Section 4(1) of the Act:- 50% of Rs.2000/- = Rs.1000 x 226.38 = 226380-00 The claimants lost the sole earning hand of the family and were subjected to absolute state of destitute and penury, therefore, the claimants would also be entitled to interest on the compensation determined above, @ 12% per annum, if the same is not paid to the claimants within one month from today. However, keeping in view the decision of this Court in Dromati Devi v. Sohan Singh, 1995 ACJ 1019 (HP), which was relied 10 upon in subsequent decision of this Court in United India Insurance Co. Ltd. vs. Nako alias Naiku Devi and others, 1996 ACJ 516, the compensation and interest shall be recoverable from the Insurer. The claimants are also entitled to penalty as compensation statutorily required to be paid within one month was not paid to them. The owners have not defended the petition. The owners chose not to come forward and pay the same. Keeping in view the decision of this Court in Ram Dulari Kalia vs. H.P. State Electricity Board and another, ILR 1986 H.P.842, the claimants shall be entitled to penalty. The penalty, in my view, keeping in view the conduct of the owners of the vehicle should be imposed to the maximum, which is 50% of the awarded amount. This amount is to be recovered from the owners alone. Ordered accordingly. For the foregoing reasons and observations, the present appeal is allowed. 23rd October, 2008 (Sanjay Karol), (C) Judge.