Gauhati High Court
National Insurance Co.Ltd vs Smti Pomila Mirdha And Anr on 25 July, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010182672012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/63/2012
NATIONAL INSURANCE CO.LTD.
SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA
REGISTERED HEAD OFFICE AT 3, MIDDLETON STREET, CALCUTTA-
700071, REPRESENTED BY THE DEPUTY MANAGER, GAUHATI REGIONAL
OFFICE, BHANGAGARH, GUWAHATI-781005
VERSUS
SMTI POMILA MIRDHA AND ANR
W/O LATE KARTIK MIRDHA, R/O BARBARI, KHAPORI CHUK GAON, P.O.
SITAL PATHAR, P.S. DERGAON, DIST. GOLAGHAT, ASSAM.
2:SMTI INU PHUKAN RAJKHOWA
D/O SRI TANKESWAR PHUKAN
R/O DULAKHORIA GAON
P.O. KAMARBANDHA
P.S. AND DIST. GOLAGAHT
ASSA
Advocate for the Petitioner : MS.R D MOZUMDAR
Advocate for the Respondent : MS. S KHANIKAR
Linked Case : MC/2002/2012
NATIONAL INSURANCE CO.LTD.
SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA
REGISTERED HEAD OFFICE AT 3
Page No.# 2/4
MIDDLETON STREET
CALCUTTA-700071
REPRESENTED BY THE DEPUTY MANAGER
GAUHATI REGIONAL OFFICE
BHANGAGARH
GUWAHATI-781005
VERSUS
SMTI POMILA MIRDHA AND ANR
W/O LATE KARTIK MIRDHA
R/O BARBARI
KHAPORI-CHUK GAON
P.O. SITAL PATHAR
P.S DERGAON
DIST. GOLAGHAT
ASSAM.
2:SMTI INU PHUKAN RAJKHOWA
D/O SRI TANKESWAR PHUKAN
R/O DULAKHORIA GAON
P.O. KAMARBANDHA
P.S. AND DIST. GOLAGAHT
ASSAM
------------
Advocate for : MS.R D MOZUMDAR
Advocate for : appearing for SMTI POMILA MIRDHA AND ANR
PRESENT
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Appellant : Mrs. R.D. Mozumdar,
Advocate.
For the Respondents : Ms. S. Khanikar,
Advocate.
Date of Hearing : 04.06.2024.
Date of Judgment : 25.07.2024.
Page No.# 3/4
JUDGMENT AND ORDER (CAV)
Heard Mrs. R.D. Mozumdar, learned counsel representing the appellant. Also heard Ms. S.
Khanikar, learned counsel representing the respondents.
2. This is an appeal under Section 30 of the Workmen's Compensation Act, 2023, against the
judgment dated 10.08.2010 passed by the Chairman, W.C. Tribunal, Golaghat in W.C. Case
No.38/2009 awarding compensation and holding that the Respondent No.1 is entitled to a
compensation of ₹3,44,855/- only along with interest at the rate of 9% per annum from the date of
filing of the petition, payable by the appellant Insurance Company.
3. On 06.05.2008, the deceased was working as a labourer doing loading and unloading of goods in
the vehicle bearing Registration No.AS-01/N-6489 which was owned by the Respondent No.2. On that
day, while the said truck was kept parked by the side of the National Highway No.37 under Dergaon
P.S., an unknown vehicle hit the deceased and fled away. The deceased was immediately taken to
AMCH at Dibrugarh. On the next day i.e. 07.05.2008 at about 5.50 P.M., he died in the hospital.
4. A claim petition was filed before the Tribunal. The Tribunal awarded a compensation of
₹3,44,855/- along with interest at the rate of 9% per annum to the claimant. The Tribunal held that
since the said vehicle bearing Registration No.AS-01/N-6489 was admittedly covered by the insurance
policy of the appellant company, therefore, the Tribunal directed the appellant insurance company to
pay the said compensation.
5. Aggrieved by the aforesaid judgment, the insurance company filed this appeal on the ground that
the deceased did not die in course of his employment.
6. Mrs. Mozumdar has pointed out that the witness Ganga Mirdha has stated in his evidence that the
deceased Kartik Mirdha did not die in course of his employment. Referring to Section 3 of the
Employee's Compensation Act, 1923, Mrs. Mozumder has pointed out that it is required by law that the
deceased should be employed and should die in course of his employment and then only he can get
compensation.
7. Mr. Mozumdar further submitted that since it was a hit and run accident, the claimant should
have filed a claim application under Section 161 of the Motor Vehicles Act, 1988 seeking compensation
from the Government.
8. In order to buttress her point, Mrs. Mozumdar has relied upon the decision of the Hon'ble
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Supreme Court that was delivered in Mackinnon Mackenzie and Co. Pvt. Ltd., vs. Ibrahim Mohammed
Issak, reported in (1969) 2 SCC 607. Paragraph 5 of the judgment is quoted as under:
"5. To come within the Act the injury by accident must arise both out of and in the course of employment.
The words "in the course of the employment" mean "in the course of the work which the workman is employed to
do and which is incidental to it." The words "arising out of employment" are understood to mean that "during the
course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless
engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have
suffered." In other words there must be a causal relationship between the accident and the employment. The
expression "arising out of employment" is again not confined to the mere nature of the employment. The
expression applies to employment as such -- to its nature, its conditions, its obligations and its incidents. If by
reason of any of those factors the workman is brought within the zone of special danger the injury would be one
which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an
incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed
himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley [(1917)
AC 352] Lord Sumner laid down the following test for determining whether an accident "arose out of the
employment":
"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the
very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured
person's employment to hazard, to suffer, or to do that which caused his injury? If yes, the accident arose out
of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to
do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the workman
was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably
incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are
all different ways of asking whether it was a part of his employment, that the workman should have acted as he
was acting, or should have been in the position in which he was, whereby in the course of that employment he
sustained injury."
9. I have decided to agree with Mrs. Mozumdar because there is no evidence in this case to prove
that the deceased was an employee under the Respondent No.2 and he died in course of his
employment.
10. For the aforesaid reasons, the three substantial questions are answered accordingly. The appeal is
allowed. The impugned judgment dated 10.08.2010 passed by the Chairman/Commissioner, W.C.
Tribunal, Golaghat in W.C. Case No.38/2009, is set aside.
Send back the LCR.
JUDGE
Comparing Assistant
