Bombay High Court
Asha Pralhad Karle And Others vs Dattatray Narayan Khule And ... on 2 May, 2016
Bench: V.K. Jadhav
1 FA 1539.2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1539 OF 2014
1. Smt. Asha Pralhad Karle
Age : 39 years, Occ: Housewife,
2. Amol Pralhad Karle
Age : 22 years, Occ: Education,
3. Aniket Pralhad Karle
Age : 20 years, Occ: Education,
Appellant Nos. 1 to 3 reside at
Village Valan, Taluka Rahuri,
District Ahmednagar. ... Appellants
(Orig. claimants no. 1 to 3)
Versus
1. Sarpanch,
Grampanchayat Valan,
Taluka Rahuri,
District Ahmednagar.
2. Upsarpanch,
Grampanchayat Valan,
Taluka Rahuri,
District Ahmednagar.
3. Gramsevak,
Grampanchayat Valan,
Taluka Rahuri,
District Ahmednagar. ... Respondents
(Orig. respondents)
...
Advocate for Appellants : Mr V. V. Tarde
...
CORAM : V.K. JADHAV, J.
Dated: May 02, 2016
...
2 FA 1539.2014.odt
ORDER :-
1. Being aggrieved by the Judgment and Order dated
6.1.2014 in Application (WC) No.64 of 2009, the original
claimants have preferred this appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a]
On 17.2.2009 at about as per directions given by
the Respondents, late Pralhad Karle was doing a work of
replacing electric bulb by climbing on electric pole of
street light of Gram Panchayat. He was doing said work
at about 04.30 p.m and while doing that work, he had
fallen on the ground. In consequence of which, he had
sustained grievous injuries. He was immediately shifted
to hospital, where he succumbed to the injuries on
26.02.2009 while under treatment. The legal
representatives of deceased Pralhad preferred an
application under the Workmen's Compensation
Act,1923 bearing Application (WC) No.64/2009 for grant
of compensation. Deceased Pralhad was serving as a
peon on monthly salary of Rs.2,400/-. His death
3 FA 1539.2014.odt
occurred out of and during the course of his
employment.
b] Respondents no. 1 and 2 have not filed their
written statement, however, respondent no.3 strongly
resisted the application by filing his written statement.
It is denied that deceased Pralhad was doing the work of
replacing bulb on street light as per directions of the
respondents. It is also denied that death of Pralhad
Karle occurred out of and during the course of his
employment. It is admitted that deceased Pralhad was
in service of the Gram Panchayat as a Peon. As per the
duty list prepared by the Gram Panchayat, he was not
supposed to carry out the work of replacing bulbs on
street lights. It is also contended that on the date of
accident, deceased Pralhad Karle was not on duty.
c] Learned Commissioner for Workmen's
Compensation & Judge, Labour Court, Ahmednagar, by
its impugned Judgment and Order dated 6.1.2014,
dismissed the application with costs. Hence, this
appeal.
4 FA 1539.2014.odt
3. Learned counsel for the appellants/applicants
submits that duty list is placed on record before the
Commissioner and the same is marked at Exh.U-13.
Besides daily work of Gram Panchayat, as per serial
no.5 of the duty list, deceased Pralhad was supposed to
carry out work as per directions given to him by the
Sarpanch, Upsarpanch, Gram Panchayat Members and
also the Gramsevak. Respondents no.1 and 2, who are
the Sarpanch and Upsarpanch of the said Gram
Panchayat, have not filed their written statement and
they have not contested the Application (WC) as such. It
is also not denied by them by filing written statement
that, no such instructions were given to deceased
Pralhad to replace bulbs of the street lights.
Undisputedly, street lights in the village are maintained
by the Gram Panchayat. So far as muster roll is
concerned, on 16.2.2009 and 17.2.2009, signature of
the deceased is absent. By taking undue advantage of
the same, respondent no.3 made a statement before the
Commissioner that deceased Pralhad was absent on
duty on the date of accident. Deceased Pralhad was
serving as a peon and it is usually a practice in Gram
5 FA 1539.2014.odt
Panchayat that, for a person like deceased Pralhad, who
was working as a peon, to sign the muster roll as and
when convenient. The muster rolls are not therefore
regularly maintained and placed in a conspicuous part
of the office of Gram Panchayat. It is not a corporate
office and it is simply a Gram Panchayat office and
signing or not signing on the muster roll is not of much
importance. Deceased Pralhad was on duty and his
wife-claimant no.1 has deposed to that effect.
4. Learned counsel further submits that the
Commissioner has wrongly dismissed the claim on the
ground that there are contradictory statements in the
Police documents. So far as F.I.R. Exh.U-8 is concerned,
the F.I.R. is not lodged by an eye witness to the incident
and the same is lodged by the Head Constable on the
basis of hearsay evidence. Furthermore, inquest
panchnama was also drawn on 26.2.2009 and the
statement referred in the inquest panchnama is also a
hearsay statement. So far as spot panchnama is
concerned, there is a specific mention that, deceased
Pralhad had fallen down from the electric pole and met
6 FA 1539.2014.odt
with an accidental death. Learned Commissioner has
not considered the certified copies of A.D. Inquiry report
submitted by the Police Constable before SDO, which
are accepted by the SDO, and accordingly, the SDO
issued summary about accidental death of deceased
Pralhad with specific observations that he met with an
accidental death due to falling from the electric pole
while replacing bulbs on street light. Even though
certified copies of the Police papers and order passed by
the SDO were placed before the Commissioner, the same
are not considered for the reason that those documents
are placed before the Commissioner at belated stage.
The report submitted after due inquiry by the Police u/s
174 of the Criminal Procedure Code and the order
passed by the SDO on the basis of said report are vital
documents and the Commissioner should have accepted
straight way those documents. Even other side had not
raised any objection when said documents were
produced before the Commissioner. Even though the
Commissioner has allowed production of said
documents on the application submitted at Exh.U-25
and accepted the list Exh.U-26, failed to consider those
7 FA 1539.2014.odt
documents. It is also referred in various police
documents that there is a neem tree just adjacent to the
electric pole and there may be confusion while filing
F.I.R. that deceased met with an accidental death while
cutting the branches of the said tree. Learned
Commissioner has not considered anything and straight
way dismissed Application (WC) No.64/2009. Claimant
no.1 is a widow and claimant nos. 2 and 3 are the minor
claimants. Even though, death of Pralhad occurred out
of and in the course of his employment, the Gram
Panchayat has avoided to pay compensation. The
claimants are, thus, entitled for compensation as per
the relevant provisions of law and their application for
grant compensation may kindly be allowed with costs.
5. Though the respondents are duly served and even
though notice of final disposal is also served on them,
none appears for them before this Court.
6. So far as duty list placed on record is concerned,
the duty assigned to deceased Pralhad at Serial No.5
indicates that he had to act as per the instructions
8 FA 1539.2014.odt
given to him by the Sarpanch, Upsarpanch, Member of
the Gram Panchayat and the Gramsevak from time to
time. Respondents No.1 and 2 i.e. Sarpanch and
Upsarpanch of the Gram Panchayat have not filed their
written statement when the claimants have approached
the Commissioner with specific pleadings that deceased
Pralhad was replacing the bulbs on a street light electric
pole as per the directions given to him by the
respondents. Undisputedly, street lights in the village
are maintained by the Gram Panchayat. In my
considered opinion, on the date of accident, there was
absolutely no reason for the deceased Pralhad to climb
on the electric pole of street light and replace the bulb
without any directions or instructions in this regard
from the respondents. It appears that the respondents,
by placing the duty list on record, have conveniently
taken a stand to deny the liability to pay compensation
to the legal representatives of the deceased Pralhad.
7. So far as signing on muster roll is concerned, I
fully agree with the submissions made by learned
counsel for the appellant. Muster roll is maintained by
9 FA 1539.2014.odt
the Gram Panchayat and generally a person, serving as
a peon, signs on the muster roll as and when he gets
time after the duties assigned to him are over. Claimant
no.1 has stated in her evidence that on 17.2.2009, her
deceased husband Pralhad was on duty and on that day
at about 04.30 p.m., he was replacing the bulbs on the
electric pole and met with an accidental death due to
falling down on the road. Respondent No.3, who has
examined himself, deposed that on 15.2.2009, column
of muster roll is blank as it was Sunday, however, on
16.2.2009 and 17.2.2009 deceased Pralhad remained
absent. He could not explain that on 16.2.2009, when
the deceased Pralhad remained absent from duty, why
notice was not given to him. He has further admitted in
his cross examination that deceased Pralhad was
required to carry out the orders/instructions given to
him by Sarpanch, Upsarpanch and Members of the
Gram Panchayat. It appears from the evidence of
respondent No.3 that he is taking undue advantage of
non signed muster roll. However, it cannot be ignored
that at the time of accident, deceased Pralhad was
replacing bulb by climbing on an electric pole of the
10 FA 1539.2014.odt
street light which is maintained by the Gram Panchayat.
Under no circumstances deceased Pralhad was required
to climb the electric pole of a street light in the village on
his own without there being any specific instructions in
this regard. It is also not possible that, by remaining
absent on duty, deceased Pralhad had climbed on the
electric pole of the street light on his own without any
instructions.
8. So far as police documents are concerned, it is
specifically mentioned in the spot panchnama that,
there is a neem tree adjacent to the said pole where the
accident had taken place. It appears that the F.I.R.
Exh.U-8 came to be lodged by Police Head Constable on
behalf of the State on the basis of hearsay information.
It is not clear from the contents of F.I.R. that, as to who
has given information to the concerned Police Station
about the manner of accidental death of deceased
Pralhad. However, during the course of inquiry of
accidental death, it appears from the certified copies of
the report submitted by the police station to the SDO
that the concerned Police Sub-Inspector has recorded
11 FA 1539.2014.odt
the statements of near about eight witnesses and
submitted his report to the SDO with the specific
conclusion that deceased Pralhad had climbed the
electric pole of street light for replacing bulbs on the
date of accident and had fallen down on the road from
the electric pole and sustained injuries. It has further
stated in the said report that nobody has given any
other reason of his death and accordingly request is
made in the said report to the SDO to issue summary to
that effect. Accordingly, SDO had issued summary in
terms of the conclusion drawn by the PSI in the said
report. I do not find any reason as to why learned
Commissioner has not considered these vital
documents. The learned Commissioner has given
unnecessary importance to the contradictory
statements recorded in the police documents such as
F.I.R., Spot Panchnama by ignoring the fact that said
statements have been recorded in those police
documents on the basis of hearsay information. It
appears that the learned Commissioner has ignored the
best evidence available before him and placed his
reliance on certain contradictory statements in the
12 FA 1539.2014.odt
police documents and dismissed the application wherein
the compensation is claimed on account of death of a
permanent employee.
9. The learned counsel for the appellant has rightly
placed his reliance on the decision in the case of
Zubeda Bano wd/o Abdul Aziz Qureshi and others
vs. Divisional Controller, Maharashtra State Road
Transport Corporation, Nagpur and others, reported
in 1990 (2) Mh.L.J. 685 wherein, in paragraph no.4 of
the judgment, the Division Bench of this Court at
Nagpur has made following observations :-
"4. Having heard the parties and perused the
record it seems to us that the entire approach of
the commissioner was hyper technical and this
appeal deserves to be allowed.
It is true that there is no direct evidence of
the incident. It is equally true that very scanty
material is available on record about the
circumstances in which the incident took place.
But the absence of ample evidence should not
relieve the Court of its duty to arrive at a
conclusion on the vital issues on the basis of
13 FA 1539.2014.odt
available material. The Evidence Act as such
does not apply to the proceedings under the Act,
as has been held in Union of India vs. T.R.
Varma, AIR 1957 SC 882, and Burhwal Sugar
Mills Ltd. vs. Ranjan, 1982 Lab.L.J. 84. The Act
is a beneficial legislation intended to give some
security to the workman in certain types of
employment. Indeed it contains a sort f mini-
insurance scheme. The liability of the employer
under the Act is conceptually quite different from
the liability under tort. All these facts therefore,
call for a broad and liberal construction of the
Act, lest its evident object is defeated. "When
evidence is balanced" observes Gujarat High
Court in the case of Bal Shakri vs. New
Manekchowk Mills Ltd., 1961 (1) L.L.J. 585, "if
the evidence, shows greater possibility which
satisfied a reasonable man that the work
contributed to the causing of the personal injury,
it would be enough for the workman to
succeed".
10. In light of the above observations and also the fact
that the Commissioner allowed production of report
submitted by the PSI requesting therein for issuance of
summary and the SDO has accordingly issued the
summary about accidental death with the observations
14 FA 1539.2014.odt
as mentioned in detail above, I am inclined to accept
those documents and also prefer to read said
documents submitted alongwith list Exh.U-26.
11. Claimant No.1 has deposed before the
Commissioner that her deceased husband Pralhad was
getting Rs.4,500/- to Rs.5,000/- p.m. as gross salary.
However, to substantiate the same, she has not placed
any salary certificate on record. Respondent No.3, as it
appears from the affidavit of evidence, brought before
the Commissioner original salary register and further
placed on record the extract of salary for the year 2006-
2007. Thus, as per salary certificate Exh.U-12, deceased
Pralhad was getting salary of Rs.2,400/- per month
prior to his death as per his appointment order dated
25.1.2005. The learned Commissioner has also
considered the same while recording findings to issue
no.3 as "Rs.2,400/- p.m.". As per salary extract at
Exh.C/14, in the year 2006-2007, deceased Pralhad was
getting Rs.1,500/-. It is, thus, appropriate that in the
year 2009 when he met with an accidental death, he
was getting Rs.2,400/- per month as total salary.
15 FA 1539.2014.odt
12. Thus, in terms of the provisions of Section 4 of the
Employees Compensation Act, 1923, claimants are
entitled for compensation. As per school leaving
certificate placed on record, date of birth of deceased
Pralhad is 1.6.1961. Thus, on the date of accident,
deceased Pralhad was 48 years old. In view of the
provisions of section 4 of the Act, 50% of his wages, if
considered for the purpose of compensation, comes to
Rs.1,200/- p.m. and as per his age, after applying
relevant multiplier 159.80, total compensation comes to
Rs.1,91,760/-. The claimants are entitled for the same
along with interest @ 12% p.a. from the date of
application till realization of the entire amount. So far
as penalty is concerned, learned counsel, on
instructions submits that the claimants would not press
for the penalty. In view of this, following order is
passed.
O R D E R
I. First Appeal is hereby partly allowed.
II. The Judgment and Order dated 6.1.2014
passed by the Commissioner for Workmen's
Compensation & Judge, Labour Court,
16 FA 1539.2014.odt
Ahmednagar, in Application (WC) No.64/2009
is hereby quashed and set aside.
III. Application (WC) No.64/2009 is hereby partly
allowed with proportionate costs and the
respondents are hereby directed to pay
compensation of Rs.1,91,760/- jointly and
severally to the claimants with interest @ 12%
p.a. from 17.03.2009 i.e. one month from the
date of accident till realization of the entire
amount.
IV. First appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
