ORDER :

1. This Miscellaneous Appeal has been filed by the appellant under Section 30 of the Employee’s Compensation Act, 1923 (for short “the Act, 1923”) against the award dated 02.03.2017 passed by the learned Commissioner, Employee’s Compensation Act, Labour Court, Durg (C.G.) in Case No. 86/WC Act/2012 Fatal in case of Paramjeet Kour and Others vs. Pavitar Singh and Others.

2. This appeal was admitted by this Court on 22.08.2023 on the following substantial question of law:

“Whether learned Commissioner manifestly committed an error of law in holding that the deceased was an employee of appellant?”

3. The brief facts reflected from the record are that the respondent/claimant filed an application under Section 22 of the Act, 1923 mainly contending that the deceased Amarjeet Singh was working with the respondent who is a contractor and in compliance of the direction given by the respondent, the deceased was working on the site on 09.05.2012 and due to dilapidated structure of building, the deceased got buried and succumbed to death. It has also been contended that the deceased was working as Gas Cutter and he was getting Rs. 5000/- per month. At the time of incident, the deceased was aged about 55 years and as per the scheduled, the relevant factor for calculating compensation comes to Rs. 135.56 as such they are entitled to get compensation to the tune of Rs. 3,38,900/-. The claimants have demanded compensation from respondent, but the same has not been paid, as such they are entitled to get compensation @ 12% interest and 50% penalty.

4. Learned Commissioner taking cognizance of the application, issued notice to the respondents wherein the respondent has filed a written statement denying the allegations made in the application mainly contending that he is not aware whether the deceased expired in course of employment. He has also denied that he was getting salary from him as he was never employed by them and would pray for rejection of the application. It has also been contended that the property where the accident took place is purchased by Ms. Sama Enterprises, Dehradun, but he has not made party to them, as such the application deserves to be rejected for want of necessary party.

5. The appellant has also filed an application under Order 1 Rule 10 of the C.P.C. on 16.12.2014 to implead one Ranjit Singh as the claimant in her deposition before the Commissioner, has stated that Ranjit Singh is employer. The claimants have replied to it that as per the statement and police record, the deceased Amarjeet Singh was working with non-applicant No. 1 only and prayed for rejection of the said application.

6. Learned Labour Court vide its order dated 11.03.2015 has rejected the same by recording its finding that burden lies upon the claimants to prove that who is the employer of deceased, as such, application under Order 1 Rule 10 of CPC deserves to be dismissed.

7. Learned Commissioner on the pleading of the parties, has framed as many as four issues. Issue No. 1 & 4 are relevant, therefore, they are extracted below:

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4- D;k tokcnkok esa of.kZr dkj.kksa ds nkok fujLr ;ksX; gS\**

8. The claimants to substantiate their claim application have examined witness namely Smt. Paramjeet Kour, Ranjit Singh, Harmit Singh, Balvinder Singh and exhibited documents namely police enquiry report (Ex. P/1), merge intimation (Ex. P/2), FIR (Ex. P/3), Map (Ex. P/4 & P/5), application for post mortum with report (Ex. P/6). The appellant to substantiate his case, has examined Pavitar Singh.

9. The claimants' witness Paramjeet Kour has examined before the Commissioner by way of affidavit as provided under Order 18 Rule 4 of C.P.C. and exhibited documents. In the cross-examination, she has admitted that her husband’s employer is Ranjit Singh. She has also admitted that her husband was working with Ranjit Singh but he has not worked w