V.D. Gyani, J.
1. This miscellaneous appeal under section 30 of the Workmen's Compensation Act is directed against the order dated 20.12.1979 passed by the Commissioner for Workmen's Compensation, Indore in case No. 57 of 77, dismissing the appellant's claim for compensation on the ground that he failed to prove that the injury was caused during the course of his employment with the respondent, although it has been found as a fact that the injury sustained by the appellant's hand, while working on the thrasher resulted in loss of earning capacity to the extent of 60%, thus entitling the appellant to claim compensation as per item No. 4 of Schedule I, Part II of the Workmen's Compensation Act.
2. Thus, the short question involved in this appeal is whether the appellant was in the employment of the respondent, when he sustained the injury on 13.4.1976 while working on respondent's thrasher. The respondent while admitting the fact that injury was caused, while the appellant was working on the thrasher installed in his field but has denied that the appellant was in his employment. According to him one Kishan S/o Rama of the village had approached him to permit to thrash grams on his thrashing machine, which he (respondent) permitted at gratis. It was Kishan, who had engaged the appellant for helping him in thrashing, and promised the appellant 5 Kg of gram for the help rendered by the appellant. The respondent also pleaded that after about eight or ten days of the accident, a panchayat was held in the village, which awarded Rs. 1661/- to the appellant as compensation for the injury suffered by him. This amount was accepted by appellant's father on behalf of the appellant vide receipt, Ex. D-3 It may be noted here, that admittedly Poonamchand, appellant's father was in respondent's employment.
3. Counsel for the appellant has assailed the finding on the question of employment as perverse. Kishan has not been examined by the respondent as a witness to prove his case. Shri Amarsingh, learned counsel contended that the appellant had paid process for him, and should have examined. There is no force in the argument. Primarily, the burden lay on respondent to examine Kishan as it was his case that the appellant was engaged by Kishan as a helper, in thrashing gram, he should have proved it by examining Kishan.
4. The Commissioner appears to have been carried away by Ex.D/1 and Ex.D/3. Ex.D/1 is the reply to the notice given by the appellant, and Ex.D/3 is the panch-faisla, an award dated 26-3-1976 produced by the respondent's witness Sawantsingh. The document was written by respondent himself. What is significant to be noted about it is that none of witnesses examined on the point stated that Poonamchand, father of the appellant had put his thumb-mark on Ex. D-3. Admittedly Poonamchand was labour working for the respondent. His, 'nokarnama' has been placed on record by the respondent. Indisputably, the appellant is not a party to the award nor is there any evidence to suggest that Poonamchand, his father had any authority from his son to accept any such award. Legality of the 'Panch-faisla' apart, Poonamchand being a 'bonded-labour' of the respondent, it was incumbent upon the respondent to prove not only the genuineness of the award and its proceeding but also its fairness. The Commissioner had missed these important aspects of the matter, while acting upon Ex.D/3.
5. The Commissioner has committed yet another error in deciding issue No. 1 regarding appellant's employment with the respondent, he seems to have been over-impressed by consistency of stand taken by the respondent in his notice as also the written statements. Such consistency is no substitute for truth, a consistent plea may be taken as in this case on legal advice and to support the plea evidence may be created, as in this case-cases are not to be decided on mere consistency of stand taken by a party. What is important is the inherent quality of the evidence adduced by the party, in support of its case, which is to be appreciated keeping in view all the attending circumstances and probabilities.
6. Admittedly the respondent is a village patel, while the appellant's father a bonded-labour. The story of Kishan, a third person is purposefully introduced, to cap the employer- employee relationship as pleaded by the appellant, yet Kishan is not examined as a witness.
7. In view of the foregoing discussion the finding recorded by the Commissioner on issue No. 7, deserves to be set aside, it is accordingly set aside. It is held that the appellant was in the employment of the respondent and the injury was caused to him during the course of such employment.
8. Shri Amarsingh, learned counsel, yet contended that in view of the 'Panch-faisla', Ex. D-3, the appellant is not entitled to any compensation. Firstly as noted above, the appellant was not a party to the award as such it would not bind him, secondly such award not even if the workman-claimant were to be a party yet would adversely affect his legal rights available to him under the Act and lastly, in view of the evidence discussed above, is not an ingenuous device to defeat appellant's claim, it cannot be intrinsically relied on or acted upon for rejecting appellant's claim. The submission made by Shri Amarsingh learned counsel cannot be accepted. Section 18 of the Act clearly rules out only such 'Panch-Faisla' or contract outside the Court. It reads as follows:-
'17. Contracting out-Any contract or agreement whether made before or after the commencement of this Act, whereby a workman relinquishes any right of compensation from the employer for personal injury arising out of or in the course of the employment, shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.'
9. For the foregoing reasons, this appeal deserves to be allowed, it is accordingly allowed. The appellant is held to be entitled to compensation as claimed by him. An amount of Rs. 9,500/- awarded as compensation to the appellant, in accordance with item No. 4 of Schedule I, Part II of the Act. The respondent shall bear appellant's cost throughout. Counsel's fee Rs. 250/- if certified. The amount of compensation must be deposited with Commissioner to be withdrawn by the appellant and nonelse.