Page No.# 1/5 vs Smti Golamoni Urang And Anr
2025 Latest Caselaw 3746 Gua

Gauhati High Court

Page No.# 1/5 vs Smti Golamoni Urang And Anr on 5 March, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                        Page No.# 1/5

GAHC010073012023




                                                                 2025:GAU-AS:2275

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : MFA/26/2023

            CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED
            HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT DARE HOUSE,
            2ND FLOOR, NO. 2 N.S.C. BOSE ROAD, CHENNAI-600001 AND ITS BRANCH
            OFFICE AT AASTHA PLAZA, 4TH FLOOR, OPPOSITE TO S.B. DEORAH
            COLLEGE, G.S. ROAD, GUWAHATI.



            VERSUS

            SMTI GOLAMONI URANG AND ANR
            W/O- LATE BIRSHA URANG @ BIRISHA, R/O- VILL.- KREIGPARK T.E., P.S.
            KATIGORAH, DIST. CACHAR, ASSAM, PIN- 788805.

            2:ABDUL NOOR RAJ BARBHUIYA
             S/O- SAFIQUR RAHMAN RAJ BARBHUIYA
             R/O- VILL.- BORJATRAPUR
             PT-I
             P.O. BORJATRAPUR
             P.S. BORKHOLA
             DIST. CACHAR
            ASSAM
             PI- 788110

Advocate for the Petitioner   : MR. R GOSWAMI, MS. P BORTHAKUR

Advocate for the Respondent : MR A B DEY (R-1),




             Linked Case : I.A.(Civil)/2120/2024
                                                                                  Page No.# 2/5

            SMTI GOLAMONI URANG
            W/O- LATE BIRSHA URANG @ BIRISHA
            R/O- VILL.- KREIGPARK T.E.
            P.S. KATIGORAH
            DIST. CACHAR
            ASSAM
            PIN- 788805.


            VERSUS

            CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED
            HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT DARE HOUSE
            2ND FLOOR
            NO. 2 N.S.C. BOSE ROAD
            CHENNAI-600001 AND ITS BRANCH OFFICE AT AASTHA PLAZA
            4TH FLOOR
            OPPOSITE TO S.B. DEORAH COLLEGE
            G.S. ROAD
            GUWAHATI.


            ------------

Advocate for : MR A B DEY Advocate for : MR. R GOSWAMI appearing for CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED

PRESENT THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellant : Mr. R. Goswami, Advocate.

                    For the Respondents :                 Mr. A.B. Dey,
                                                          Advocate.

                    Date of Hearing         :             17.09.2024.
                    Date of Judgment        :             05.03.2025.

                           JUDGMENT AND ORDER (CAV)

Heard Mr. R. Goswami, learned counsel representing the appellant Insurance Company. Also heard Mr. A.B. Dey, learned counsel representing the respondents.

2. This is an appeal under Section 30 of the Employee's Compensation Act, 1923, against the judgment and order dated 25.04.2022 passed by the Commissioner for Employee's Compensation, Page No.# 3/5

Cachar in E.C. Case No.13/2018.

3. On 08.02.2018, late Ajit Urang was driving the vehicle bearing Registration No.AS-11-BC-8675 (Tipper). On that day, one of the front tyres was punctured. The petitioner intended to change the tyre. Therefore, he lifted the vehicle by using a jack. But the jack slipped and the deceased sustained head injuries. Thereafter, on 10.02.2018 at about 7.20 P.M., he succumbed to his injuries.

4. His mother Golamoni Urang filed the application before the Commissioner seeking compensation of ₹18,000,00/-.

5. The Respondent No.2, being the owner of the said vehicle admitted that the deceased was his employee in respect of the said vehicle. He also admitted that the accident took place in course of employment.

6. The present appellant, inter alia, claimed that the present appellant claimed that the claim of the Respondent No.1 is barred under Section 10 of the Employee's Compensation Act, 1923.

7. On the basis of pleadings, the following issues were framed:

I. Whether the deceased, Ajit Urang was driver of the vehicle (Tipper) bearing Registration No.AS-11-BC-8675 at the time of the accident?

II. Whether the policy of insurance and other relevant documents of the said vehicle and the driving licence of the deceased driver, Ajit Urang were valid or not at the time of the accident?

          III.       What was the monthly salary of the deceased driver?
          IV.        What was the age of the deceased, Ajit Urang at the time of the accidental death?
            V.       Whether the accident and death of the deceased occurred in course and out of his
                  employment under the O.P. No.1?
          VI.        If the above issues are proved in favour of the deceased, what will be the quantum of
                  compensation?

8. The Respondent No.1/claimant examined herself. She exhibited some documents also. She was cross-examined by the appellant.

9. On the basis of the evidence on record, the Commissioner passed the impugned judgment.

10. The learned Commissioner awarded a compensation of ₹13,17,650/-.

11. I have gone through the impugned judgment.

12. In the written statement filed by the appellant Insurance Company, it was pleaded that the claim was bad on account of limitation as mentioned in Section 10 of the Employee's Compensation Act, 1923 (for short, referred to as "the Act of 1923"), but the learned Commissioner did not frame any issue on this point.

13. Section 10 of the Employee's Compensation Act, 1923, reads as under:

10. Notice and claim.--

(1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or in case of death within two years from the date of death:

Page No.# 4/5

Provided that where the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of section 3 are applicable, the accident shall be deemed to have occurred on the first of the days during which the employee was continuously absent from work in consequence of the disablement caused by the disease:

Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the employee to absent himself from work, the period of two years shall be counted from the day the employee gives notice of the disablement to his employer: Provided further that if an employee who, having been employed in an employment for a continuous period, specified under sub-section (2) of section 3 in respect of that employment, ceases to be so employed and develops symptoms of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected: Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim--

(a) if the claim is preferred in respect of the death of a an employee resulting from an accident which occurred on the premises of the employer, or at any place where the employee at the time of the accident was working under the control of the employer or of any person employed by him, and the employee died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or

(b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured employee was employed had knowledge of the accident from any other source at or about the time when it occurred:

Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that the notice has not been given, or the claim has not been preferred, in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause. (2) Every such notice shall give the name and address of the person injured and shall state in ordinary language the cause of the injury and the date on which the accident happened, and shall be served on the employer or upon any one of several employers, or upon any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed.

(3) The State Government may require that any prescribed class of employers shall maintain at their premises at which employees are employed a notice book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured employee employed on the premises and to any person acting bona fide on his behalf.

(4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any office or place of business of the person on whom it is to be served, or, where a notice-book is maintained, by entry in the notice-book.

14. Section 10 of the Act of 1923 is dependent upon certain facts, which are to be proved by the party who claims its benefit. The learned Commissioner failed to frame an issue on this point and thereby the Page No.# 5/5

appellant Insurance Company was debarred from proving its claim.

15. In the written statement filed by the Respondent No.2 (Respondent No.1 before the Tribunal) had admitted that the accident, where Ajit Urang lost his life, took place in course of his employment. The Insurance Company also did not specifically deny the fact. Therefore, the Issue No.5 was unnecessarily framed.

16. Similarly, Issue No.1 also, was unnecessarily framed because Respondent No.2 (Respondent No.1 before the Tribunal) had admitted in his written statement that the deceased was his employee in respect of the vehicle bearing Registration No.AS-11-BC-8675. Admitted facts need not be proved. This is what the law of evidence prescribes.

17. The Tribunal fixed the monthly income of the deceased @ ₹12,000/- per month. This view of the Tribunal is based on a judgment passed by this Court. But the Government has fixed the monthly income of an employee under the Employee's Compensation Act, 1923 to be ₹8,000/- per month. The Ministry of Labour & Employment, has already issued a Notification on 31 st May, 2010. The learned Commissioner failed to state that the decision of this Court relied upon by it was passed in the context of Employee's Compensation Act, 1923.

18. Under the aforesaid premised reason, the impugned judgment is bad in law and requires interference of this Court.

19. The appeal is allowed. The impugned judgment and order dated 25.04.2022 passed by the Commissioner, Employee's Compensation, Cachar in E.C. Case No.13/2018, is set aside.

20. The case is remanded to the Commissioner, Employee's Compensation, Cachar for framing fresh issues and after giving opportunity to the parties to prove their cases, a fresh judgment shall be delivered.

With the above direction, both appeal as well as the connected Interlocutory Application stand disposed of accordingly.

JUDGE

Comparing Assistant