Kalyan Singh Vs. Kalyan Singh and anr. - Court Judgment

Rajesh Tandon, J.

1. Heard Shri Yogesh Pandey, counsel for the appellant, Shri D.S. Patni, counsel for the respondent No. 1 and Shri Deepak Rawat, counsel for the respondent No. 2.

2. By the present appeal, filed under Section 30 of Workmen's Compensation Act, the appellant has prayed for setting aside the judgment and order dated July 22, 2005 passed by Workmen's Compensation Commissioner, Champawat in W.C.C. No. 4/2002 by which the claim petition of the claimant has been dismissed.

3. Briefly stated, an application under Section 4 of Workmen's Compensation Act was filed being W.C.C. No. 4/2002 in the Court of Commissioner, Workmen's Compensation, Champawat. According to the claimant, he was employed as driver 1 in the Jeep No. UP 29/1001 belonging to Kalyan Singh i.e. respondent No. 1. On October 4, 2001 the aforesaid Jeep met with an accident during the service near Simalkhet as a result of which the backbone of the claimant got broken. His both legs got also fractured. The claimant was taken to Lohaghat for primary medical aid and thereafter he was referred to Bareilly for better treatment. He underwent treatment for a long period and a sum of Rs. 80,000/- has been spent on his medical treatment. He also underwent medical treatment at Almora Base Hospital. It has been stated that due to the accident, the claimant has become permanently disabled. He has sent a notice for compensation to the insurance company as well as the Jeep owner but no compensation has been given to him. The claimant was aged about 3 5 years at the time of accident and he was getting a sum of Rs. 2,000/-towards salary. The claimant has claimed a sum of Rs. 19,700/- alongwith interest thereon at the rate of 12 per cent.

4. The owner of the Jeep in question has filed a written statement admitting therein that he was paying a sum of Rs. 2,000/- to the claimant towards salary.

5. It has been admitted that the accident had taken place during the service. It has been submitted that the Jeep in question was insured with the Oriental] Insurance Company Ltd. and all the papers relating to the Jeep were in order. The accident in question had taken place due to rash and negligent driving by the claimant. The insurance company is liable to indemnify the compensation.

6. The Oriental Insurance Company Ltd. has filed a written statement stating therein that the claimant has not produced the certificates with regard to monthly payment, age, injury-report, disability certificate, etc. The Jeep in question was not being driven in accordance with the insurance policy. The claimant was not the employee of the defendant No. 1. The claimant is not entitled for any compensation and the claim petition is liable to be dismissed.

7. The claimant has examined himself as P.W.I. On behalf of the defendants, owner of the Jeep in question has been examined as D.W.I.

8. The Workmen's Compensation Commissioner has rejected the claim for compensation on the ground that the disability certificate has been filed belatedly and the same. was not issued by the Chief Medical Officer. The Workmen's Compensation Commissioner has further recorded the finding that prima facie it does not appear that the claimant has suffered with bodily loss and his physical disability does not come under any category as envisaged in < Part-I and Part-II of Schedule-1 of Workmen's Compensation Act, 1923.

9. I am not in agreement with the findings of the Workmen's Compensation Commissioner and I propose that the matter requires a fresh consideration on the following facts:

(a) Whether the claimant was employed with the respondent No. 1 on the date of; accident?

(b) As to what was the salary which was being paid to the claimant?

(c) As to whether he had received the injuries during the course of employment?

(d) As to whether the non-lodging of F.I.R. will result in the non-maintainability of the claim petition?

10. Apart from the aforesaid, the medical certificate may also be proved by examining the doctor in this regard as held in Kashmir Singh v. Santosh Singh Patiner and Ors. in A.O. No. 393/2005 passed by the Division Bench of this High Court on November 30, 2006.

11. In the case of Kashmir Singh v. Santosh Singh Patiner and Ors. (supra), the Division Bench of High Court has held as under:

13. It is well settled position of law that if a claimant filed a claim petition before the Tribunal and he does not adduce any evidence thereof, the claim petition Cannot be allowed without supporting evidence of the claimant. There may be cases where certain documents are produced. If those documents had not been connected by any oral evidence, it cannot be said that those documents are genuine. The Court or the Tribunal cannot rely thereupon. The general principle of evidence would guide the Tribunal while deciding the claim petition. The guiding principle had been incorporated in the Evidence Act. If the principles of the evidence were not made applicable in the cases of the motor accident claim, it would be very difficult for the Tribunal to decide the claim petition. For instance, a claim petition is filed by the claimant alleging therein that he sustained injuries and spent Rs. 2 lacs in the treatment and if no supporting evidence is produced and proved by the claimant that how many injuries have been sustained or whether he had sustained the injury in the accident, how the Tribunal can adjudicate the matter effectively. It is provided under the Evidence Act that the document forming the acts or records of the public officer are public documents. Supposing a certificate of medical board was produced before the Tribunal certifying the disability of the claimant and he did not pray for production of the certified copy or document and insists the Tribunal to read it in evidence without proving its genuineness. In case, the contention of the claimant is accepted the Tribunal would not only accept genuineness of the said document but also rely upon its contents without examining the doctors who allegedly issued such certificate. If any document is public document, in such a case, by production of a certified copy, the contents of the document or part of the document can be proved. It is also settled position by now that merely proving the handwriting of the person who had written a document, the veracity of the statement made in the said document cannot be proved. Such person must depose before the Court in support of the contents and would face cross-examination of the opponent. Otherwise such document can merely be taken into consideration for the purposes of showing that such document was issued once its genuineness is proved. But whether the contents of the certificate are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the Court and faces cross-examination. The contents of a document without examining the author are worst pieces of hearsay evidence.

12. In view of the aforesaid, the matter is allowed and remanded to the Workmen's Compensation Commissioner for deciding the claim petition in the light of the observations made above.