MILAP CHANDRA JAIN, J. - (1.) THIS appeal has been filed under section 306 of the Workmen's Compensation Act (hereinafter to be called 'the Act') against the order of the Workmen's Compensation Commissioner, Sriganganagar dated September 30, 1988 awarding compensation, interest and penalty to the tune of Rs. 37,831/-, Rs. 4,727/- and Rs. 9,457/- respectively, in all Rs. 52,015/ -. The facts of the case giving rise to this appeal may be summarised thus,
(2.) ON April 24, 1987, the respondent filed a petition before the Workmen's Compensation Commissioner, Sriganganagar claiming compensation to the tune of Rs. 44,274/- with the allegations, in short, as follows. Since the year 1984, her son Shiv Kumar was in the employment of the Nav Bharat Rice and General Mills, Industrial Area, Hanumangarh Junction in short 'the Mill' (appellant) herein. In the morning of July 30, 1986, he was sent for collecting labourers from the village Makkasar on the motor-cycle of the Mill along with Prithvi. While going to Makkasar, he met with an accident at about 6 A. M. As a result thereof, he received several injuries. He was immediately taken to Narang Hospital, Khunja Industrial Area, Hanumangarh and therefrom to Government Hospital, Hanumangarh Town. He died there the same day. His date of birth was 01. 01. 1964 and his wages were Rs. 500/-per month. He was not married. The petitioner was entirely dependent on him. Notice could not be served upon the opposite party in time because of her illiteracy and old age. In its reply, the Mill admitted that Shiv Kumar was employed with it as a Chowkidar, he was on duty till 6 A. M. on 30. 07. 1986 and he was brought to the Government Hospital, Hanumangarh by Prithvi and Supervisor Shishram in an injured condition. The remaining allegations of the petition were denied. It has further been averred that his wages were Rs. 430/-per month and not Rs. 500/- per month, the Manager of the Mill Mal Chand came to know about the accident at about 10 A. M. and he attended the injured Shiv Kumar at the Government Hospital, Hanumangarh Town at 10 A. M. On December 11, 1987, the following issues were framed : *********** The petitioner-respondent examined Dr. Ashok Narang, P. W. 1, Surendra Kumar P. W. 2, Prithvi P. W. 3 and herself as P. W. 4. The non-petitioner-appellant examined Shishram, D. W. 1, Dulichand D. W. 2 and Satish Kumar D. W. 3. After hearing the parties, the learned Workmen's Compensa-tion Commissioner, Sriganganagar decided all the issues in her favour and awarded compensation as said above. It has been contended by the learned counsel for the appellant that the learned Workmen's Compensation Commissioner has seriously erred to hold that the deceased Shiv Kumar was sent by the Manager of the appellant Mill to bring labourers from Makkasar, the motorcycle belonged to the appellant Mill and the workman Shiv Kumar died in the course of his employment. He also contended that the Workmen's Comensation Commissioner has not properly and correctly appreciated the evidence on record, there is no evidence on record to prove that the deceased was sent by the said Manager to bring labourers from Makkasar and there was no necessity for the extra labourers for the appellant Mill as a good number of extra labourers were already working there. He also contended that admittedly deceased Shiv Kumar was one of the Chowki-dars of the Mill and it was not a part of their duty to bring labourers from nearby villages. The most material witness Prithvi P. W. 2 has not supported the petitioner's case, he has, on the contrary, said that he was going to bring milk and the certificate of the Transport Officer, Sriganganagar has been relied upon without getting it proved. He relied upon AIR 1962 S. C. 1314 (1), 1980 R. L. W. 412 (2), AIR 1958 Allahabad 564 (3), AIR 1951 Madras 969 (4), AIR 1970 Goa 127, (5), AIR Rangoon 18 (6), AIR 1970 S. C. 1906 (7), AIR 1958 Calcutta 164 (8), AIR 1961 Calcutta 310 (9) and AIR 1958 S. C. 881 (1 ). In reply, it has been contended by the learned counsel for the petitioner respondent that no substantial question of law is involved in this appeal, the findings of the Workmen's Compensation Commissioner, namely, deceased Shiv Kumar was sent by the Manager of the Mill to Makkasar on the motor-cycle of the Mill alongwith Prithvi P. W. 2, he met with an accident and he died during the course and in the employment of the appellant Mill are findings of fact. He also contended that the provisions of the Evidence Act do not apply in these proceedings the Workmen's Compensation Commissioner has properly and correctly appreciated the evidence on record. He further contended that the accident occurred in the way in between the Mill and the village Makkasar and not in the way in between the Mill and his house, the deceased was going on the motor-cycle No. RRC 40 registered in the name of the Mill, co-workman Prithivi P. W. 2 was with him at the time of the accident and these facts strongly corroborates the petitioner's case. He relied upon 1983 R. L. W. 17 (11), 1985 W. L. N. 455 (12), 1989 A. C. J. 86 (13) and AIR 1986 (14)
(3.) IT is the admitted case of the parties that the deceased Shiv Kumar was in the employment of the appellant Mill, he was going on the motor-cycle No. RRC 40, Prithvi P. W. 2 was sitting on the pillion, he met with an accident on Hanumangarh-Makkasar road near Housing Board Colony at about 6 AM. on July 30, 1986, he was seriously injured, he was immediately taken to Nar-ang Hospital, therefrom to the Government Hospital, Hanumangarh Town and there he succumbed to his injuries the same day. IT is also not disputed that the deceased Shiv Kumar used to come to the appellant Mill on his bicycle and the place of accident did not lie on the way in between the Mill and his house. The first question for consideration in this appeal is whether the deceased Shiv Kumar was sent by the Manager of the appellant Mill, Malchand to the village Makkasar to bring labourers for the appellant Mill. In its written arguments, paper No. 85-98 dated 30. 09. 88, the appellant has stated that the answer of this question mainly depends on the question as to whom the said motorcycle No. RRC 40 belonged. The learned Workmen's Compensation Commissioner has held that this motor-cycle belonged to the appellant Mill. The Workmen Compensation Commissioner issued notice to the appellant Mill for 27. 05. 1987 and the latter filed its initial reply, paper No. 12/3 on its letter-head. In this reply, it has not been denied that the said motor- cycle did not belong to the Mill. Filing of this reply, papers No. 12/3, is admitted by the appellant Mill in its subsequent application, paper No, 14/3 dated 10. 06. 87. In her written arguments, the claimant-respondent has stated at pages 12-13 that despite her best efforts she could not earlier obtain a certificate from the transport authority that the said motorcycle No. RRC 40 belonged to the appellant Mill and she has now been able to obtain it and it is being enclosed with the written arguments. The certificate, paper No. 84/3, was enclosed with the written arguments. Written arguments, papers No. 61-83, show that a copy thereof was duly received by the learned counsel for the appellant Mill. The appellant Mill also filed its written arguments, papers No. 85-98. It is stated at page 91 thereof that the claimant could obtain a certificate from the transport department to show that the said motorcycle belonged to the appellant Mill, if she wanted to do so. Nothing has been said either in the written arguments filed before the Workmen's Compensation Commissioner or in the memorandum appeal filed in Court this against the said certificate, paper No. 34/3, issued by the District Transport Officer, Sriganganagar to the effect that the said motorcycle No. RRC 40 is registered in the name of the appeilant Mill. No suggestion was put in the cross-examination of Surendra Kumar P. W. 2 and Prithvi P. W. 3 that the said motorcycle No. RRC 40 was not registered in the name of the appellant Mill. The petitioner Rukma Devi P. W. 4 has disclosed in her cross-examination that she enquired about the motorcycle from Prithvi P. W. 3 and the latter told her that the motorcycle belonged to the Seth (owner of the appellant Mill ). No suggestion was put to her that the motorcycle did not belong to the appellant Mill. Shishram D. W. 1 and Dulichand D. W. 2 have simply stated that the motorcycle No. RRC 40 was not in the appellant Mill. They did not say that this motorcycle did not belong to the appellant Mill. The Manager Satish Kumar D. W. 3 has not said anything in his statement about this motorcycle. Shish Ram D. W. 1 has come on record that the employees of the appellant Mill frequently used and use the motor-cycle of the Mill in connection with the affairs of the Mill. From those facts and circumstances, it is well established that the said motorcycle No. RRC 40 belonged to the appellant Mill. The second question for consideration is for what purpose Shiv Kumar left the Mill. The petitioner's case is that he was sent by the Manager Malchand on the Mill's motorcycle for fetching labourers from the village Makkasar. Prithvi P. W. 3 says that Malchand sent Shiv Kumar. He did not tell the purpose for which Malchand sent Shiv Kumar. He says that Shivkumar told him that milk was to be brought. On this statement, great emphasis was laid by the learned counsel for the appellant. This part of the statement of Prithvi P. W. 3 is not correct. If the deceased Shiv Kumar would have gone to bring milk, some utensil would have been found with him. There is nothing on the record that an empty utensil was found at the place of occurrence. It seems highly improbable that two employees were sent on a motorcycle to bring milk particularly when there was a tea stall near the Mill. Surendra Kumar P. W. 2 has deposed that on seeing the accident, he immediately came to the place of accident, his neighbour Sagar Mal who was also an employee of the Mill came there and he enquired from Prithvi P. W. 3 as to where they were going on the motorcycle of the Mill and Prithvi, P. W. 3 replied that they were going to bring labourers from the village Makkasar. Prithvi P. W. 3 admits that Sagar Mal came at the place of the accident immediately after the. accident. There is no good reason to disbelieve the said statement of Surendra Kumar, P. W. 2. Prithvi P. W. 3 has obliged the Mill, being its employee. Admittedly, Mal Chand has not been produced to deny the fact that he asked the deceased Shiv Kumar to bring labourers from the village Makkasar. It is not the case of the Mill in its lengthy reply that the deceased Shiv Kumar could refuse to comply with the said order of the Manager Mal Chand. ;