NATIONAL INSURANCE CO LTD Vs. UMAPATI & OTHERS

JUDGEMENT

(1.) Uncontrovertedly, Tek Chand, the predecessor-ininterest of the claimants/petitioners during the course of his rendering employment as a beldar under respondents No.1 and 2 stood entailed injuries upon his person in sequel to a boulder falling upon him at the relevant site of occurrence, in consequence whereof he met his end. The learned counsel appearing for the appellant does not controvert the factum of the petitioners/claimants being the dependents of the aforesaid TekChand. He also does not controvert the factum qua his succumbing to the injuries sustained by him in the manner enumerated in the petition being an ensuing sequel thereto. The only address made before this Court by the learned counsel for the appellant for reversing the findings recorded by the learned Commissioner in the impugned order stands hinged upon, the latter discarding the factum of the deceased workman at the relevant time performing employment under respondent No.2, to whom respondent No.1 wheretowhom the relevant work stood allotted sub contracting it vis-a-vis respondent No.2, whereupon he contends of with a bar enjoined in the relevant insurance cover executed inter se respondent No.1 and respondent No.3/appellant herein, against respondent No.1 sub contracting the relevant work, bar whereof on standing infringed would not render respondent No.3 to be amenable for liability being fastenable upon it, for indemnifying the insured qua the amount of compensation assessed vis-a-vis the petitioners/claimants for the demise of their predecessors-in-interest during the course of his rendering employment under a sub contractor. However, the aforesaid submission addressed by the learned counsel appearing for the appellant is shorn off any vigour, initially on the score of respondent No.1, to whom the relevant work stood allotted while concerting to corroborate his apposite contention reared in his reply qua his sub contracting it vis-a-vis respondent No.2 his placing reliance upon Mark "Z". However, with Mark "Z", constituting the photo copy of the original besides when its execution stands not proven in accordance with law no leverage can stand derived therefrom by respondent No.1 nor by the counsel for the appellant of the latter sub contracting the relevant work vis-a-vis Rajesh Kumar, respondent No.2. However, the learned counsel for the appellant submits that with the claimants conceding in their petition qua their predecessor-in-interest standing engaged by respondent No.2 estops them to contend of the latter standing engaged by respondent No.1 at the relevant time. However, the aforesaid submission is unacceptable as per se any admission of the dependents of their predecessor-in-interest unless cemented by its standing garnered from their close personal knowledge qua the aforesaid factum, personal knowledge whereof emanating from theirs after perusing the relevant record existing with the PWD department which awarded the relevant work to respondent No.1 unearthing therefrom qua respondent No.2 obtaining payments therefrom qua the relevant work executed by him. However, in the absence of the aforesaid evidence, the mere tendering into evidence of Mark "Z" which otherwise remained not proven in accordance with law nor any admission aforesaid of the petitioners can give any capitalization to the counsel for the appellant qua its succeeding in proving the factum of the predecessor-ininterest of the claimants/petitioners standing at the relevant time engaged as a workman not by respondent No.1 rather by respondent No.2. The effect of the aforesaid inference of the submission of the learned counsel for the appellant of respondent No.1 sub contracting the relevant work vis-a-vis to respondent No.2 merits its hence standing discountenanced by this Court.

(2.) Consequently, with hence this Court holds with firmness of the endevour of the appellant to exculpate its liability to defray to the dependents of the deceased workman compensation assessable qua them in accordance with the provisions of the Workmen Compensation Act being highly fanciful or surmisal. As a corollary, the further submission addressed before this Court by the learned counsel for the appellant of with respondent No.1 purportedly sub contracting the relevant work for its execution to respondent No.2 whereon the deceased workman was employed, the apposite bar constituted in the relevant contract of insurance executed inter se the appellant with respondent No.1 against any liability for indemnifying respondent No.1 qua any amount assessed as compensation qua the cliamaints/petitioners being unfastenable qua it being invokable besides warranting this Court to exculpate its liability to indemnify respondent No.1 with whom the relevant insurance policy stands executed by respondent No.3/appellant qua the work aforesaid, also his submission of the impugned award of the learned Commissioner being reverseable, all warrant theirs standing rejected by this Court. Be that as it may, even the aforesaid submission made by the learned counsel for the appellant appears to be surmisal given the apparent fact of the appellant not adducing before the learned Commissioner the terms and conditions of the insurance policy executed by it with respondent No.1. Given the non adduction thereat by the appellant of the relevant material pronouncing the fact of it containing a bar upon respondent No.1 to sub contract the relevant work vis-a-vis respondent No.2, hence rendered it to remain hidden from the sight of this Court. In sequel, it cannot be concluded of there at all existing in the relevant contract of insurance executed by the appellant with respondent No.1 any embargo against respondent No.1 sub contracting the relevant work to respondent No.2, even if, assumingly it stood subcontracted.

(3.) For the reasons recorded hereinabove, the instant appeal is dismissed and the order impugned before this Court is affirmed and maintained. All pending applications also stand disposed of. No order as to costs.