BHAGAT SINGH Vs. SADHU SINGH

JUDGEMENT

(1.) This appeal arises out of the award of the Commissioner under the Workmens Compensation Act (hereinafter referred to as "the Act") dated December 8, 1997. Appellants are the parents of the deceased Amar Singh, who was going in a Gypsy driven by one Rajinder Singh on October 2, 1987, when it met with an accident which proved to. be fatal to Amar Singh. It is the case of the appellants that the deceased was going to Talwara Hydel Project site where the work of respondent No. 1 was going on. Respondent No. 1 is the company and respondent No. 2 is the Managing Director of the company. The Gypsy earlier belonged to the respondents but it was sold to R.C. Saw Mills. The driver Rajinder Singh was earlier in the service of respondent No. 1. When Gypsy was sold to R.C. Saw Mills his services were also taken over by the said Mill. The contention of the appellants is that deceased was going in the Gypsy at the time of accident as a workman of the respondents for the work of the respondents under the employment of respondents.

(2.) Respondents vide their written statement, admitted that deceased Amar Singh was in their employment as a Driver at the time of accident. The appellants have contended in their petition that Amar Singh was under the employment of respondents for 24 hours. This contention has been denied. It has further stated in the written statement that at the time of accident, Amar Singh was not performing any duty of the respondent and it was Dussehra day and he was enjoying festival with one Rajinder Singh (Driver of Gypsy) who was his friend and travelled in Gypsy on his own accord. The Commissioner had earlier dismissed the petition and the appellants had filed an appeal being FAO No. 983 of 1996. This Court at the time of hearing the appeal found that Rajinder Singh was summoned (as a witness) and from the zimni orders, it was not found that he was given up as a witness, still he was not examined. This Court found that Rajinder Singh could have been examined and he would have proved as to for and what purpose Amar Singh was going in the Gypsy towards Hydel project. It is also observed by this Court in the judgment that the appellants wanted the respondents to produce the service record of Amar Singh, but they objected to it and declined to produce the same on one pretext or the other and if the record would have been produced by the respondents, position would have been cleared whether Arnar Singh was their employee for 24 hours or not. It is also observed by this Court that the Commissioner had not considered both these aspects but has chosen to dismiss the petition without affording reasonable opportunity and assistance to the appellants. This Court found it proper to remand the case to the Commissioner to examine Rajinder Singh as a witness and to compel the respondents to produce the service record of deceased Amar Singh. Consequently the case was remanded to the Court of Commissioner with direction to summon Rajinder Singh to record his statement and also to direct the respondents to produce service record of Amar Sing and to decide the petition afresh. This judgment was delivered by this Court on May 5, 1997.

(3.) Witness Rajinder Singh has not helped the appellants and he has stated that he did not know that on October 2, 1997 he along with Amar Singh was going towards Talwara Hydel in the Gypsy bearing registration No. DDI7728. In the cross-examination, he had stated that on the day of Dussehra, he did not travel with Amar Singh. This witness has also given his complaint to the Police on the basis of which DDR was recorded on October 3, 1987. It is Mark "A". The case of the appellants is mentioned by the witness in the DDR though not supported by him in his deposition. Conclusion cannot be drawn by relying on the facts stated in the D.D.R. only. However, D.D.R.. shows that this witness is not telling the truth.