FAO No. 3549 of 2005 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
FAO No. 3549 of 2005 (O&M)
Date of decision: July 13, 2009
M/s Aggarwal Refractory ........ Appellant
Versus
Commissioner and others .......Respondents
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. Tapan Kumar Yadav, Advocate for
Mr. Jai Vir Yadav, Advocate
for the appellant
Mr. Amit Jaiswal, Advocate
for the respondents
-.-
Nirmaljit Kaur, J.
This is an appeal against the order dated 04.08.2004 and 17.05.2005
passed by the Commissioner under Workmen’s Compensation Act, 1923, Ambala.
Facts, in short, are that Shri Mohan Lal, deceased was working with
M/s Aggarwal Refractory (P) Ltd. Moreover, by mistake respondent No. 2 for
herself and on behalf of other respondents being mother, filed a petition under the
Workmen’s Compensation Act, seeking compensation on account of death of
Shri Mohan Lal, husband of respondent No. 2 against M/s Aggarwal Industries
through its registered Partner by mistake instead of M/s Aggarwal Refractory (P)
Ltd. When notices were not served on M/s Aggarwal Industries, respondent No.
2 realised her mistake and supplied the correct address and furnished the address
of M/s Aggarwal Refractory (P) Ltd. (Subhash Casting) through Shri Om Parkash
Aggarwal. However, she did not amend the claim petition and title/memo of
FAO No. 3549 of 2005 (O&M) 2
parties. M/s Aggarwal Refractory (P) Ltd, the present appellant before this Court
filed the reply. Since the memo of parties, had not been amended, the impugned
award was also passed against the original impleaded respondent i.e. M/s
Aggarwal Industries instead of M/s Aggarwal Refractory (P) Ltd.
The present appeal has, therefore, been filed with the primary
arguments that after the passing of the Award dated 04.08.2004, an application
was filed by M/s Aggarwal Industries, for substitution of M/s Aggarwal
Industries in place of appellant. Similar application dated 22.03.2005 was also
moved by the respondents/claimants under Section 152 CPC with a prayer to
substitute the name of M/s Aggarwal Refractory (P) Ltd. in place of M/s
Aggarwal Industries. The notice of the aforesaid applications was not given to the
present appellant and the impugned order dated 17.05.2005 has been passed,
substituting the name of the appellant in place of M/s Aggarwal Industries.
Having heard the learned counsel for the parties, I find that the
appellant is taking advantage of the fact that by mistake the name of M/s
Aggarwal Industries was mentioned in place of M/s Aggarwal Refractory (P) Ltd.
Since, the memo of parties was not corrected, the award was accordingly passed
in the name of M/s Aggarwal Industries, whereas the fact remains that fresh
notice was sent in the name of the present appellant i.e. M/s Aggarwal Refractory
(P) Ltd. Reply was also filed by the appellant. The entire case was contested by
M/s Aggarwal Refractory (P) Ltd. Also, an application was moved to substitute
the name of M/s Aggarwal Refractory (P) Ltd. in place of M/s Aggarwal
Industries in the main award. It was, however, argued by the learned counsel for
the appellant that no hearing was granted while substituting the said name.
I do not find any merit in the aforesaid submissions of the learned
counsel for the appellant, inasmuch as, it was a simple case of typographical
FAO No. 3549 of 2005 (O&M) 3
error, and especially in view of the facts that the appellant has filed his reply in
the main case and had contested the case, after getting due opportunity to do so.
It was further borne out from the order dated 17.05.2005 that in fact, it was M/s
Aggarwal Refractory (P) Ltd. and Shri Kalu Ram, who is authorised by M/s
Aggarwal Refractory, to conduct the case, had pursued the same through out.
Thus, M/s Aggarwal Refractory (P) Ltd. had been pursuing their case ever-since.
It was a typographical error. The entire case was defended by M/s Aggarwal
Refractory (P) Ltd. itself, and the appellant cannot be allowed to take any
advantage, at this stage of the typographical error.
It is a case, wherein the deceased Mohan Lal died on account of
electrocution on the tubewell motor, belonging to the appellant. As per the
findings of the Commissioner and from the perusal of the statement of witness
RW1 Satish Kumar, Manager of the appellant, it is manifest that the deceased
died while working in the factory of the appellant. The testimony of RW3,
Madan Lal, is relevant, as it is admitted by him that the site where deceased
Mohan Lal met with an accident, belonged to the appellant. In fact, this witness
has also admitted that deceased Mohan Lal used to come to factory daily for
work. Such evidence, wherein the witnesses of the appellant have admitted the
factum of the deceased Mohan Lal coming daily for work in the appellant-
factory,there is no merit in the appeal and the same is accordingly dismissed
being devoid of merits.
(Nirmaljit Kaur)
Judge
July 13, 2009
mohan
Whether to be referred to reporter : Yes/No