The High Court allowed the Workmen’s Compensation appeal holding that police statements under Section 161 Cr.P.C. are admissible in civil claims and the deceased was an employee entitled to compensation.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 605 OF 1999 1. Atarbi Kadar Bedade ) 2. Shakir Kadar Bedade ) 3. Reshma Kadar Bedade ) 4. Saddam Kadar Bedade )… Appellants
VERSUS
1. S.V. Mohite ) 2. Sharad Shrikant Nalawade ) 3. Zilla Parishad, Sangli ) 4. Executive Engineer, Zilla Parishad, Sangli )... Respondents … Ms. Sharmeen Bukhari a/w. B.V.Bukhari, Advocates for the Appellants. Mr. Gaurav S. Gawande, Advocate for Respondent Nos. 1 and 2. …
CORAM : ARUN R. PEDNEKER, J.
DATED : 1st AUGUST, 2024.
JUDGMENT
1. The appellants by the present first appeal are challenging the Judgment and Order dated 11.03.1999 passed by the Commissioner of Workmens’ Compensation, Sangli in Workmens’ Compensation Application No. C-46 of 1993 dismissing the claim filed by the claimants.
2. The facts leading to the filing of the claim petition in brief are summarised as under: 1 of 14
3. One Kedar Mohammed Bedade died on 01.02.1993 in an accident by electrocution. The claimants are the legal heirs of the deceased who have filed the claim petition before the Commissioner of Workmens’ Compensation, Sangli (for short “the Tribunal”) contending that the accidental death of Late Kedar Bedade has happened in the course of his employment while being employed with respondent Nos. 1 and 2.
4. It is the case of the appellants that Late Bedade was working as a watchman at the worksite of respondent No. 1 at the Primary Health Centre at Bagni from six months prior to his death. Late Bedade was getting wages of Rs.23.[8] per day and Rs.690/- per month as he was required to be at the construction site for all the 24 hours as he was working as a watchman at the worksite. On 01.02.1993 at about 2:30 p.m. while the deceased was working at a worksite, he went to start the electric motor for spraying water on the construction work where he got electric shock and thereby died on the spot. The accident was registered in the Ashta police station. Formerly, FIR was registered and enquiry was conducted. The appellant Nos. 1 to 4 are heirs and dependents of the deceased Bedade and filed the application for compensation against the opponents. The appellant’s claim is of Rs.60,000/as compensation along with @18% interest in penalty and cost. The appellants contend that the respondents have failed to take care of the 2 of 14 electric motor and its wire connection and the deceased died on the spot in the accident. The opponent No.1 has filed written statement at Exhibit-C-30 denying the claim of the claimants. It was denied that deceased died in the accident arising out of and in the course of his employment with the opponent No.1 on 01.02.1999. It was further denied there was relationship as employer and employee between the opponent No.1 and the deceased Bedade. Opponent No.2 also filed written statement denying the contentions of the applicants that there was relationship as employer and employee between the opponent No. 2 and the deceased at any time. Opponent No.3 is the Zilla Parishad, Primary Health Center at Bagni and Opponent No.4 is the Executive Engineer of Zilla Parishad, Bagni.
5. It is the case of the appellants that deceased was working under the supervision of opponent No.2. Opponent No.1 has taken a construction project from opponent Nos. 3 and 4.
6. Evidence was led before the Tribunal by Smt. Atarbi Bedade, widow of the deceased. Police constable Mr. Umrao Shamrao Chougule is also examined as applicant’s witness No. 2. Evidence was placed on record on behalf of respondent No.1 of the witness Mr. Pradeep Mohite who was working at the site of construction of residential quarters at Begni. The opponent has lead evidence of Mr. Pratap Y. Waidande, watchman working 3 of 14 with Chouthai Construction Company, so also opponent No.2 Mr. Sharad Nalawade was examined as witness No.2. Witness No.4 was Mr. Baburao Sawant, who was the Section Engineer with opponent No.4 and has produced the construction contract between opponent No.1 and opponent No.4. So also the police papers were produced in the investigation carried by the police in the accidental death of Late Bedade.
7. Considering the evidence before the Tribunal, the Tribunal has held that the deceased was not the employee of the opponent No.1 and had not died during the course of his employment with opponent No.1 and accordingly dismiss the application filed by the claimants.
8. Challenging the above Judgment of the Tribunal, Ms. Sharmin Bukhari, i/b. B.V.Bukhari, learned counsel for the appellants submits that findings rendered by the Tribunal is perverse, as regards the employment of the deceased being not with opponent No.1 as the same is rendered while rejecting the admissible evidence which the Court ought to have taken into consideration. The learned counsel for the appellants submits that a substantial question of law arises in this regard for consideration of this Court. She has taken me through the evidence produced by the applicant more particularly the statements made before the police immediately after the accident and that the police constable was also examined who recorded 4 of 14 the statements of the witnesses. So also the respondent No.2 in his deposition has admitted the statement made to the police.
9. Learned counsel for the appellants relies upon the following Judgments:
(i) Gauri Shanker Vs. State of Rajasthan[1]
(ii) Khatri & Ors. etc. Vs. State of Bihar and ors[2]
(iii) Hindustan Petroleum Corporation Ltd., Mumbai Vs.
10. PER CONTRA, Mr.Gaurav Gawande, learned counsel for the respondent Nos. 1 and 2 relies upon the Judgment of the Hon’ble Supreme Court in the case of Golla Rajanna and Others Vs. Divisional Manager and Another[4], submits that the Workmen’s Compensation Commissioner is the last authority on facts and in the instant case the finding of fact rendered by the Commissioner cannot be interfered in the First Appeal. So also, he has further relied upon the Judgment of North East Karnataka Road Transport Corporation Vs. Sujatha[5] and submits that the Appeal filed under Section 30 are only to be entertained on substantial questions of law and relies upon paragraph No.12 of the Judgment as under: “12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not
5 of 14 like a Regular First Appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case.” The learned counsel for the respondent Nos. 1 and 2 submits that findings rendered by the Tribunal that the deceased was not the employee of opponent No.1 cannot be interfered with as the same is a finding of fact and not amenable to challenge before this Court in the First Appeal under Section 30 of the Workmens’ Compensation Act.
11. Having considered the rival submissions, at the outset, it is relevant to consider what is a substantial question of law in a case. The Hon’ble Supreme Court in the case of Illoth Valappil Ambunhi (Dead) by legal representatives Vs. Kunhambu Karanavan[6], at paragraph Nos.13 and 14 has held that the perversity in arriving at a factual finding gives rise to a substantial question of law. The relevant paragraph Nos. 13 and 14 are quoted as under:
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“13. In Gurnam Singh’s case (supra) this Court held that in a Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the Court were erroneous being : (1) contrary to the mandatory provisions of the applicable law; or (2) contrary to the law as pronounced by this Court; or (3) based on inadmissible evidence or no evidence. 14. It is now well settled that perversity in arriving at a factual
6 of 14 finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.“
12. Considering the law laid down in the case of Illoth Valappil Ambunhi (supra) and the facts of this case, the following substantial question of law arises for consideration before this Court: “Whether the finding rendered by the Tribunal as regards the employment of the deceased being not with opponent No.1 is perverse for non consideration of the admission made by opponent No.2 so also is arrived at by rejecting the admissible evidence of the statements made to the police in the investigation.” In this regard, the most important evidence that is available on record is the evidence of opponent No.2 Mr. Sharad Nalawade he has stated in his deposition at paragraph No.2 as under:
“2. I was not present on the spot when the accident occurred. I had received a telephone message from the Govt. Hospital at my Sangli office about the death of deceased Kedar Bedade. Then I visited the spot at Bagani where the accident occurred. I had collected the information from the compounder i.e. employee of the opponent No.3 viz. Shri. Kamble, Dr. Sale and they told me that deceased Kadar died by electric shock while taking water from the tank. My statement was recorded by the police on 01.02.1993. I was working as a Supervisor with the opponent No.1. Therefore I am not liable to pay any compensation to the applicant.“ the opponent No.1
In his cross examination he has stated that Late Bedade was not working with the opponent No.1 when he was working as a supervisor. He has also stated that it is not correct to say that Late Kedar Bedade was working with him as a watchman and died during the employment due to 7 of 14 electric shock. However, in his deposition (examination in chief), he has admitted that his statement was recorded by police on 01.02.1993 and the same was already placed on record by the police constable, who had recorded the statement.
13. It is also relevant to note that the police constable who recorded the statement has also entered into the witness box. He has stated in his deposition that he has recorded the statement of Mr. Nalawade (opponent No. 2) and conducted inquest panchanama on the same date. Mr. Sharad Nalawade has also stated that after the demise he went to the house to meet the relatives of the deceased. So also, in the evidence of the widow of the deceased she has stated that the deceased was working with the opponent Nos. 1 and 2 as a watchman at Bagni Taluka, District Sangli and her husband died by electric shock while he was operating electrical motor at the premises of opponent Nos. 1 and 2.
14. The learned commissioner has discarded the statements recorded before the police by holding that the statement made under Section 161 cannot be used in evidence as the person who made the statement has not been examined by the appellants before the Court.
15. The Hon’ble Supreme Court in the case of Khatri & Ors. etc. Vs. 8 of 14 State of Bihar and ors. (supra) has held that the bar under Section 162 of the Cr.P.C. would not be applicable in any proceedings other than the enquiry or trial in respect of an offence which is under investigation at the time when such a statement was made. The relevant paragraphs of the judgment of Khatri & Ors. (supra) are quoted below: “It is apparent from this section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. Then we come straight to S. 162 which occurs in Chap. XII dealing with the powers of the Police to investigate into offences. That section, so far as material, reads as under: 162 (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for ‘any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, Khatri & Ors. etc. Vs. State of Bihar and ors.and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act." It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used ’at any inquiry or trial in respect of any offence under investigation at the time when such statement was made’. If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted. This section has been enacted for the benefit of the accused, as pointed out by this Court in Tehsildar Singh and Another v. The State of Uttar Pradesh(1) it is 9 of 14 intended "to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence." This Court, in Tehsildar Singh’s case approved the following observations of Braund, J. in Emperor v. Aftab Mohd. Khan(2) "As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths." and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe v. Emperor(3) that "the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses." Protection against the use of statement made before police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act.
16. This Hon’ble Court in the case of Hindustan Petroleum Corporation Ltd., Mumbai Vs. Pratap Vishnu Dhuri and Ors. (supra) relying upon the judgment of Kuldeep Singh v. State of Punjab (reported in (1996)10 SC 659) has held that the confessional statement made to a police officer is not admissible in a Court of law by virtue of the provisions of Sections 25 and 26 of the Evidence Act, 1872, “it is equally well settled that this rules of evidence do not apply to departmental enquiries". In this 10 of 14 context, while holding that the confessional statement made to a Police Officer could be relied upon by the departmental authorities if it had been voluntarily made.
17. In the instant case, the statement were already produced by the police constable on record while deposing for the appellants. The opponent No.2, in his examination-in-chief, has admitted the statement, as such the admission made by opponent No. 2 in the statement to the police is binding upon the opponent No.2. In the statement to police there is clear admission that the deceased Mr. Bedade was the employee of the Opponent No.1.
18. However, the Tribunal failed to appreciate that the bar under Section 162 of the Cr.P.C. is not applicable to the Civil proceedings so also opponent No.2 who had given statement to the police has also admitted in his evidence before the tribunal that he had made statement to the police and the statement which was already on record was not denied by the opponent No.2. Evidence of opponent No. 2 read with his police statements would suggests that the deceased was working with the opponent No.1 and opponent No. 2 was supervisor of the site. I see no reason why the opponent No. 2 could have gone to the residence of the relatives of the deceased so also he could have attended the accident/victim if the deceased was not working with the opponent No.1 under the supervision of opponent No.2. It 11 of 14 is also relevant to note that appellants has not produced any documentary evidence as regards their wage register. It has only produced vouchers wherein they have made payment to the other watchman. The requirement of law that the wage register has to be maintained by the employer cannot be said to be dispensed with. The construction contractor ought to have maintained the wage register as it was taking the projects for respondent Nos. 3 and 4. As such an adverse inference ought to have been taken against the construction contractor for having not producing the wage register.
19. The Tribunal has further held that the perusal of spot panchanama shows that Mr. Bedade died near the water tank which is situated in the Primary Health Centre at Begni. It clearly shows that deceased Mr. Bedade did not die at construction site and there is no sufficient evidence on record to show that the construction was going on 01.02.1999. However, the finding that the deceased did not die at work site is also perverse for the same reasons.
20. Mr. Baburao Sawant (PW-4) Section Engineer in his evidence has stated that construction contract is given to the Opponent No.1. The construction work is in the premises of opponent No. 3 when the accident had taken place. It is the case of the applicant that the water in the tank is utilized for the purpose of construction and while switching on the motor to 12 of 14 spray water on the newly made construction the deceased suffered an electric shock. Thereafter the police have recorded the statements of the witnesses of the watchman and the supervisor of the opponent No.1, meaning thereby that the deceased was working within the construction site of the opponent No.1. The deceased had to start the electric motor for use of the water in the water tank for the purpose of spraying on the newly constructed construction. The defence of the opponent that the water tank is not where the construction is going on cannot be accepted as it is a common knowledge that for the construction purpose water is required and the water tank could be adjacent to the construction site.
21. The evidence on record clearly indicates that the deceased was an employee of opponent Nos. 1 and 2. The opponent Nos.[1] and 2 have not shown that there is water tank on the site where the construction work is going on. They are merely denying that opponent No.1 is their employee and the accident has not occurred in the course of the employment. The denial is not bonafide. The findings of fact rendered by the Tribunal that the deceased was not the employee of the opponent No.1 is perverse and this Court is entitled to set aside such a finding. The question of law raised in this appeal is answered in favour of the appellants and against the opponent Nos. 1 and the appeal is allowed. 13 of 14
22. Considering the provisions of section 4 r/w. Section 4A(a) of the Workmen’s Compensation Act, 1923 and the prayer made in the claim petition, the opponent No. 1 being the employer is held liable to pay Rs.60,000/- with 12% simple interest from 1.3.1993 (one month after the date of accident) till realisation of the amount. The opponent No. 1 is thus directed to pay Rs. 60,000/- along with 12% simple interest to the claimants. Opponent No.1 is directed to deposit the payment before the Tribunal within a period of four weeks from the date of uploading of this order.
23. The First Appeal is allowed and disposed of. All pending applications, if any, also disposed of. ( ARUN R. PEDNEKER, J.)
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