NIRMALA DEVI Vs. BAKSHI RAM

JUDGEMENT

(1.) THIS appeal by the claimant is directed against the award of the Commissioner Workmen Compensation, Sadar Mandi in case No. 26 of 2002 dated 3.9.2008 whereby the petition filed by Nirmla Devi, the appellant, was rejected solely on the ground that the accident took place with some other vehicle and the relationship of employer and employee was not established in the instant case. The allegation of Nirmala Devi was that her husband deceased Roshan Lal was engaged by the owner of the truck Fuhanu Ram as a driver in the truck and that he had loaded the truck with sand at Ner Chowk and thereafter he had to go to Bhambla. However, on the way the truck got spoilt at Galma and the truck was parked. The son of the owner was also travelling in the truck and in the morning it was found that the deceased had been hit by some other truck. According to the claimant the deceased died during the course of employment and the accident in question arose out of the employment. The learned Commissioner held that the relationship of employer and employee had not been proved. This appeal was admitted on the following substantial questions of law: -

(2.) In the F.I.R which was lodged immediately after the accident it is not mentioned that the deceased was a driver employed by Fuhanu Ram. There is nothing to indicate as to how he was at the given spot. The claimant, Nirmala Devi, through her counsel Shri C.L. Sharma sent a notice to Fuhanu Ram as well as the Branch Manager of the Insurance Company on 15th October 1997. This notice is Ext. P -1 and in the same it is alleged that Roshan Lal had been engaged by Fuhanu Ram as driver of the truck. It was further alleged that on 14.6.1997 the truck was brought by Roshan Lal from Bhambla to Kansa Khad near Ner Chowk to load sand and when the same was taken to the Bhambla, on the return journey the same was parked near Galma and on the next day the dead body of Roshan Lal was found lying near the tyres of the truck with multiple injuries on the person. It was alleged that the deceased had died during the course of employment. No reply was sent by the Insurance Company but reply was sent by Fuhanu Ram through his counsel Daler Singh. This reply is Ext.P -2 and in this reply it is admitted that deceased Roshan Lal was engaged as a driver. However, it is stated that he was engaged only for one day and that he was not in employment at the time when the accident took place. The allegations in this reply are that on 14.6.1997 Roshan Lal consumed liquor at Kansa Khud from where the sand was carried. He thereafter consumed liquor at Ner Chowk and was not in a position to drive the vehicle and therefore the son of Fuhanu Ram asked Roshan Lal to park the vehicle by the side of the road at Galma and thereafter deceased Roshan Lal alighted from the truck and went away and asked the son of Fuhanu Ram to go to sleep in the truck. The next morning dead body of Roshan Lal was found 30 to 35 feet from the rear of the truck. This is the first stand of the owner of the truck.

(3.) THE matter does not end here. Fuhanu Ram died during the proceedings and son of Fuhanu Ram, namely, Bakshi Ram appeared as RW -1 and here he comes up with different version. According to him Subhash Chand was the driver of the truck and he had never engaged Roshan Lal and that the truck had got spoilt at Galma and thereafter witness Bhakshi Ram slept in the truck and asked Subhash Chand to go and meet his father and get the money to get the truck repaired. Thus the owner has taken three totally contradictory stands. Subhash Chand has been examined as RW -2 and according to him it was he who was driving the truck on that fateful day and this truck had got spoilt near Galma. He admits that a log book was maintained since according to him the entry with regard to payment of salary was being entered only in the log book and no receipt was being given. However, no such log book has been produced before the learned Commissioner.