Dismissed

Spring Field Public School, Ratauli Road, Gobindpura v. Commissioner Under Workmens Compensation Act and Ors.

Punjab & Haryana HC1 Feb 2012FAO/509/2012

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by a school against the Workmen Compensation Commissioner's order awarding compensation to the heirs of a deceased security guard. The court upheld the Commissioner's finding that the death arose out of and in the course of employment, relying on witness testimony and rejecting the employer's contention of an external contractor's engagement.

What did the court decide?

Appeal dismissed; Commissioner's order confirming compensation liability of Rs. 3,11,970/- with interest remained intact.

Spring Field Public School… — Constitutional and Fundamental Rights | Punjab & Haryana HC (2012)

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FAO No.509 of 2012 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.509 of 2012 (O&M)

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Date of Decision: February 01, 2012

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Spring Fields Public School, Ratauli Road, Gobindpura .......Appellant

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Versus

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The Commissioner under Workmen's Compensation Act and others

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.......Respondents

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CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.PK Mutneja, Advocate for the appellant.

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Mr.RS Mamli, Advocate for the caveator-respondents.

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TEJINDER SINGH DHINDSA, J.

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CM No.2393-CII of 2012

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This is an application under Section 5 of the Limitation Act for condonation of one day's delay in filing the present FAO. The application is duly supported by an affidavit.

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For the reasons stated in para 2 of the application, the delay of one day in filing the appeal is condoned.

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CM disposed of.

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FAO No.509 of 2012

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4. The present appeal is directed against the order dated 8.11.2011 passed by the Workman Compensation Commissioner, Yamuna Nagar whereby a claim petition filed by the claimants for grant of compensation on account of death of Ram Dharup under the Workmen's Compensation Act

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FAO No.509 of 2012 (O&M)

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(since amended as Employees' Compensation Act) has been allowed and the claimants have been held entitled to a compensation of Rs.3,11,970/- and have further been held entitled to interest @ 9% per annum from 22.12.2007 i.e. after one month of the date of accident till the date of payment.

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The facts, in brief, may be noticed:

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Claimant No.1 is the widow of Ram Dharup, claimants No.2 and 3 being the minor children and claimants No.4 and 5 being the parents of deceased Ram Dharup. It was stated in the claim petition that deceased Ram Dharup was employed as a security guard with the present appellant on a monthly wage of Rs.3,000/- and had been working as such since long. It was stated that on 22.11.2007 while on duty as security guard, around 9.00 p.m., on the directions of the appellant, Ram Dharup had been directed to shift motor cycle No.HR-02J-9141 from the ground of the school to the verandah and while doing so, he sustained injuries leading to his death. Accordingly, it was pleaded that the death of workman Ram Dharup had arisen out of and during the course of his employment as security guard with respondent No.1-appellant herein. DDR was registered vide No.23 dated 23.11.2007 and post mortem was also conducted on 23.11.2007 in Government Hospital, Yamunanagar. It was pleaded that initially, the claimants had been assured compensation on account of the death of Ram Dharup but upon not receiving any compensation, notice under Section 10 of the Workmen's Compensation Act had been served on 22.2.2008. It was pleaded that deceased Ram Dharup was only 28 years of age at the time of accident leading to his death and the respondent/appellant was liable to pay compensation to the claimants being widow, minor children and parents of deceased.

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FAO No.509 of 2012 (O&M)

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The claim petition was contested by respondent No.1-the present appellant wherein a two-fold stand was taken i.e. there was no relationship of employee and employer between the deceased Ram Dharup and the appellant and secondly, Ram Dharup had not died during the course of his employment.

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It was asserted on behalf of respondent No.1 in the claim petition i.e. the present appellant that, in fact, the services of one Vishal Security Services had been hired for purposes of deputing security guard in the school premises and in pursuance thereof, Ram Dharup had been sent by one Vishal Sharma and for which the appellant had never paid any wages directly to the deceased. The fact regarding shifting of motor cycle from the ground in the school premises to the verandah and sustaining of injuries by the deceased during the course of his employment was denied. A further plea was set up that Ram Dharup had been sent by Vishal Security Services as security guard to the school premises and his duty for the relevant day i.e. 22.11.2007 was only upto 8.00 p.m. It was stated that it was subsequent to the duty period that Ram Dharup deceased started plying the motor cycle and the present appellant had no concern with respect to an accident and the injury suffered by the deceased when he was not on duty.

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Vishal Security Services was arrayed as a respondent upon application moved by the claimants and a written statement was filed by the said respondent stating that respondent No.1-appellant had required the services of the security guard 3-4 years back and it was at that point of time that Ram Dharup deceased had been introduced to the appellant herein. Vishal Security Services – respondent No.2 in the claim petition, accordingly, took a stand that deceased Ram Dharup was working directly

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FAO No.509 of 2012 (O&M)

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under the appellant for the last more than three years continuously. Even a fact regarding any contract/agreement between respondent No.1 and respondent No.2 i.e. Vishal Security Services was denied.

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The following issues were struck upon the pleadings of the

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parties:

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Whether Sh.Ram Dharup, husband and father of the applicants was the employee of the respondents at the time of the death? OPA

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Whether the deceased died during the course of employment, as alleged? OPA

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Whether the claim petition is not maintainable under the provisions of Workmen Compensation Act, as alleged in the preliminary Objections? OPR

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If issues No.1 to 3 are proved to what amount of compensation the claimants are entitled from the respondents?OPR

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Relief.

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Upon having heard respective counsel for the parties and having scanned the evidence brought on record, the Workman Compensation Commissioner held deceased-Ram Dharup to be an employee of respondent No.1-the present appellant and also held that deceased Ram Dharup had died in pursuance to an accident which occurred out of and during the course of his employment with respondent No.1appellant. Accordingly, vide memo order dated 8.11.2011, the claim petition was held to be maintainable under the provisions of Workman Compensation Act and a compensation amount of Rs.3,11,970/- was

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FAO No.509 of 2012 (O&M)

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allowed in favour of the claimants along with interest @ 9% per annum with effect from after one month from the date of accident and death of the deceased.

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Mr.PK Mutneja, learned counsel appearing for the appellant vehemently argued that the injury caused to Ram Dharup, deceased did not arise out of or in the course of his employment and as such, the impugned order was contrary to the provisions contained in Section 3 of the Workmen's Compensation Act. Learned counsel would also contend that the accident had occurred beyond the scope of employment and as such, the

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Workman Compensation Commissioner had merely proceeded on conjectures and surmises to have passed the impugned order. Learned counsel placed reliance upon a judgment of Hon'ble the Apex Court reported in Malikarjuna G.Hiremath v. The Branch Manager, the Oriental Insurance Co.Ltd. and another, AIR 2009 SC 2019 to contend that any injury/death caused to a workman on account of an accident to make the employer liable for compensation has to arise out of and in the course of his employment.

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Section 3(1) of the Workmen's Compensation Act is couched in the following terms:

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“3. EMPLOYER'S LIABILITY FOR COMPENSATION-(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:

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Provided that the employer shall not be so liable-(a) in respect of any injury which does not result in the total or

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FAO No.509 of 2012 (O&M)

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partial disablement of the workman for a period exceeding three days;

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(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to – (i) the workman having been at the time thereof under the influence of drink or drugs, or

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(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

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(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.”

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The aforesaid provision has come up for consideration in a catena of judgments of Hon'ble the Supreme Court and the following principles have been laid down in regard to the essential ingredients for purposes of attracting the provisions of Section 3 of the Workmen's Compensation Act so as to fasten a liability upon the employer as regards compensation.

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There must be a casual connection between the injury and the accident, and the accident and the work done in the course of employment. The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury. If the evidence brought on record establishes a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed, but the same would depend upon the facts of each case.

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Reverting to the facts of the instant case, while deciding issue

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FAO No.509 of 2012 (O&M)

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No.1 in favour of the claimants, it has been noticed by the Commissioner that even though a stand had been taken in the written statement regarding a contract having been entered into with Vishal Security Services for providing security guard to the school, yet no document had been brought on record to prove such fact. No contract/agreement had been brought on record and in the absence of any documentary evidence to prove that deceased Ram Dharup was an employee of respondent No.2 i.e. M/s Vishal Security Services, and in the absence of any contract having been placed on record alleged to have been executed between respondent No.1-the present appellant and respondent No.2 for providing security service, the relationship of employee and employer between Ram Dharup deceased and respondent No.1-the present appellant was duly proved.

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Even as regards issue No.2, the testimony of PW3-Raghu Nath would be crucial. PW3 had clearly deposed that on 22.11.2007 on the asking of claimant-widow Savitri Devi, he had gone to the school premises to bring the deceased as the condition of his minor son Arminder Kumar was not good and upon reaching the same at about 8.30 p.m., the Manager of the school had called upon the deceased Ram Dharup to park the motor cycle in the verandah. PW3 Raghu Nath further deposed that such direction had been given in his presence and, while parking the motor cycle, the deceased had suffered injuries which had led to his death. The Commissioner has also dealt with the plea of respondent No.1-the present appellant regarding the duty hours of deceased Ram Dharup being only till 8.00 p.m. In terms of noticing that no record in the nature of attendance register etc. had been produced to substantiate such contention. Even as per DDR, Exhibit P1, deceased Ram Dharup had been found lying dead in the

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FAO No.509 of 2012 (O&M)

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premises of the school. Accordingly, upon appreciation of evidence and upon cogent reasoning, it had been held that deceased Ram Dharup had suffered injuries leading to his death in an accident during the course of his employment with respondent No.1-the present appellant.

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The Hon'ble Supreme Court in Mackinnon Machenzie and Co. (P) Ltd. v. Ibrahim Mahmmed Issak, 1969(2) SCC 607 has held in the following terms:

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“In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence. Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. On the one hand the commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference. It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it.”

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It was held that for purposes of proving that injuries by accident leading to death of workman having arisen out of and in the course of employment would rest upon the claimants, but such essentials could be inferred upon facts which would further justify the inference. Even though,

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FAO No.509 of 2012 (O&M)

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the Commissioner would not be justified to merely proceed on surmises and conjectures but it would be permissible to draw a legitimate inference from a given set of facts and circumstances.

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I find that the findings and conclusions drawn by the Workman Compensation Commissioner in the impugned order are based on valid and cogent reasoning and as such, the impugned order does not warrant any interference.

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For the reasons recorded above, the present appeal must fail and is, accordingly, dismissed.

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21. Appeal dismissed.

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( TEJINDER SINGH DHINDSA ) FEBRUARY 01, 2012 JUDGE SRM

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Note: Whether to be referred to Reporter? Yes/No

Spring Field Public School, Ratauli Road, Gobindpura v. Commissioner Under Workmens Compensation Act and Ors.

Case brief

What is this about?

What did the court decide?

Spring Field Public School, Ratauli Road, Gobindpura v. Commissioner Under Workmens Compensation Act and Ors.

Case brief

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What did the court decide?

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