National Insurance Company Ltd vs Anadi Devi
2021 Latest Caselaw 473 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     [Civil Miscellaneous Appellate Jurisdiction]
                            M.A. No. 19 of 2011
         National Insurance Company Ltd.                     .... .. ...          Appellant
                                    Versus
         1.Anadi Devi
         2.Pamita Mahato
         3.Lalmuni Devi                                                .. ... ... Respondents
                         ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

      For the Appellant              :     Mr. G.C. Jha, Advocate.
      For the Resp. Nos.1 & 2 :            Mr. Ashutosh Anand, Advocate
                         ..........
15/02.02.2021.

             Heard, learned counsel for the parties.

The instant Miscellaneous Appeal has been preferred by the National Insurance Company Limited against the judgment/award dated 02.12.2010 passed by learned Presiding Officer, Labour Court, Dhanbad in W.C. Case No.1/2010.

Learned counsel for the appellant, Mr. G.C. Jha has submitted that there is utter confusion in the name of the deceased. Initially the deceased was identified as Dinesh Kumar on identification made by the driver and owner of the vehicle. The father, uncle and Mukhiya of the Village have also identified the deceased before the police officer. But during trial confusion cropped up when subsequently Dinesh Kumar another son of the appellant was examined in the Court. Though in absence of the police officer, who made entry in the inquest report, the court has considered the deceased to be Minesh Kumar and awarded compensation, as such, impugned award may be set aside because of discrepancy in identification of deceased.

Learned counsel for the appellant has further submitted that though the learned Tribunal has awarded interest @ 12% after one month from the date of award on the compensation amount of Rs.2,67,252/- and also additional 1/4 th of the compensation amount has been fined without any show-cause or reasonable opportunity in view of Section 4-A 3(b) of the Employee's Compensation Act, which reads as follows:-

"4-A. Compensation to be paid when due and penalty for default- (1)..............

(2) ...........

(3).............

(b) if, in his opinion, there is no justification for the delay , direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed."

As such, the impugned judgment may be set aside by this Hon'ble Court. Learned counsel for the respondents/claimants, Mr. Ashutosh Anand has submitted that there was confusion, as police officer has wrongly mentioned the name of the deceased in the inquest report though the same has been clarified at paras 14, 15 and 16 of the impugned award.

Learned counsel for the respondents/claimants has further submitted that appellant has not come up with a case that the claimant had only one son and he has not lost his another son. Such confusion has cropped up because of the laches on the part of the police officer, who prepared the inquest report, when the entire family was under agony, as such, non-examination of the police officer, the driver and owner of the vehicle has caused such confusion in the mind of the Insurance Company, but the learned Tribunal has discussed the issue in detail and has given a finding that deceased was Minesh Kumar son of both the claimants/respondents (Anadi Mahto and Pamita Devi), as such, compensation awarded by the learned Tribunal may not be interferred by this Hon'ble Court on the basis that wrong name mentioned in the postmortem report as Dinesh Kumar, on the basis of inquest report, but the said Dinesh Kumar has been examined in this case as witness, as a fact deceased was Minesh Kumar, another son of the claimants/respondents.

So far the second issue is concerned, the penalty which has been awarded @ 1/4th of the compensation amount, learned counsel for the respondents has fairly submitted that it should have been done only after due show-cause or reasonable opportunity to the Insurance Company by the learned Tribunal which has not been done, but so far interest @ 12% per annum is concerned, it may not be disturbed by this Court as it is fair and just compensation, as such, the same may not be reduced rather it should have been 12% from the date of accident in view of Section 4-A(3)

(a) of the Employee's Compensation Act, 1923.

After hearing the learned counsel for the parties, looking into the facts and circumstances of the case, the driver and the owner of the vehicle have not been examined, the entire family of the deceased, Minesh Kumar was under grave agony after accident at the time of preparing inquest report. The mistake was committed by the police officer, who made entry in the inquest report, which was never made available before the claimants so as to make prayer for necessary correction in the initial stage and because of the mistake in the inquest report, postmortem report was issued in the name of Dinesh Kumar. However, learned Tribunal has considered this aspect of the matter in paras 14, 15 and 16 of the impugned award which is profitably quoted hereunder:-

"14. In the instant case, I find that neither said Rajeev Sharma nor Surya Kr. Tiwar nor police, who recorded the statement of Rajeev Sharma have been

examined, therefore, it is very difficult to rely that deceased was Dinesh Kr. Mahto, specially when Dinesh Mahto examined before this court himself has stated that he is alive and also that his brother Minesh Mahto working as Khalasi, died in the accident. A.W.1 has produced the Voter I.Card and thereafter, Dinesh Mahto was examined, but his identity was not challenged by the O.P.

I find from the perusal of record that application dt. 27.6.06 supported with affidavit has been received in the P.S. "Nowamundi' of W.B. Singhbhum, which has been stated by A.W.1 and A.W.2 but original has not been produced by the O.P. Therefore application with affidavit on the score of evidence of A.W.1 and A.W.2 deserve to be marked as secondary evidence. Hence in the aforesaid fact, I hereby admit the application and affidavit as evidence supporting the evidence of A.W.-1 and A.W.-2, on the point of identity of deceased as Minesh Mahto. It is pertinent to mention that Ext.C-3 dt. 30.4.06 does not mention the name of deceased. However, Ext. A-2 mentioned the name of deceased as Dinesh Mahto but police has not mentioned the name of deceased in the final form but Ext.- C dt. 28.01.08 mentioned the name of deceased as Dinesh. It might be based on Ext.2.

15. Now question arises as how the name of deceased came in the postmortem report dt. 30.4.05 as Dinesh Mahto. Ext. C-7 on the record revealing the name of deceased as Dinesh Mahto has no leg to stand in any documentary evidence. However Ext.A-2 dt. 14.5.06 alone appears basis for considering Dinesh Mahto, as deceased. But this consideration could not be reverted back in Ext.C-7 dt. 30.4.10 In such situation I find that non examination of Rajeev Sharma maker of Ext.A-2, Surya Kr. Tiwari, detailed above and Police 'Nowamundi' P.S. to support Ext.-2 give sufficient ground for suspicion on genuineness of Dinesh Mahto, mentioned in the postmortem report as deceased, rather it probablies that deceased was Minesh Mahto on the one hand, and on the other hand evidence of petitioner, who is father of the Minesh Mahto and evidence of Dinesh Mahto, who has been shown dead in the Ext.C-7 coupled with Ext.A & A-1 strongly probablies the death of Minesh Mahto S/o of A.W.1, arising out of an accident and in course of employment of O.P. No.1.

16. In the aforesaid fact and circumstances, I find that there is sufficient evidence to prove under the standard of probability that it was Minesh Mahto, who died in the accident not Dinesh Mahto. The age of the Minesh Mahto, as per Ext. A-1 was 18 years on 1.1.03. The owner of the vehicle has not been examined. However, Ext.A-2 reveals that deceased was working as 'Khalasi' in the said truck and it has not been specifically denied that his monthly income was not 2400/- per month as stated by A.W.1 and A.W.2. It is evidently clear that claimant is father, as well as heir of the deceased. Therefore, he is entitled for compensation from the owner of the vehicle, which has been soldered by the O.P. No.2, by virtue of Insurance, vide Ext.-B. As per Section 4 of Workmen's Compensation Act, the compensation amount for death arising out of an accident in course of employment of O.P. No.1 is equivalent to half of monthly income into multiplier for the age of deceased, meaning thereby in the instant case amount of compensation is equivalent to ½ x 2400 x 222.71 = 2,67,252.00."

Since the Insurance Company has not come up with a case that the claimants namely, Anadi Mahto and Pamita Devi are not the parents of the deceased rather as per the admitted case of the parties, the claimants have two sons one namely, Dinesh Kumar and another Minesh Kumar. Dinesh Kumar has been examined in this case and deceased was another son of the claimants, namely, Minesh Kumar who has been wrongly identified in the inquest report as Dinesh Kumar in place of Minesh Kumar because of error committed by the police officer while preparing the inquest report, as such, the reason advanced by the learned Tribunal in paras 14, 15 and 16 is sufficient in absence of any contrary evidence brought on record by the Insurance

Company. Since no prejudice is caused upon the Insurance Company by paying the same as these two claimants have lost their son, Minesh Kumar, who has wrongly been cited in the postmortem report as Dinesh Kumar, but poor claimants are honest to the extent that they have examined another son, Dinesh Kumar in the Court so as to make such clarification.

Accordingly, the first point agitated by the learned counsel for the appellant is not acceptable to this Court.

So far the interest is concerned, if the statute provides 12 % interest in view of Section 4-A 3(b) of the Employee's Compensation Act, it goes without saying that such calculation shall be made from the date of accident in view of the judgment passed by the Apex Court in the case of Jaya Biswal & Ors. vs. Branch Manager, IFFCO TOKIO General Insurance Company Ltd. and Anr., 2016 11 SCC 201.

Accordingly, this Court is not inclined to interfere rather clarify the same that such interest shall be paid from the date of accident i.e. 30.04.2006 till the date of actual payment/indemnifying the award.

So far penalty of 1/4th is concerned, learned counsel for the appellant is right and that has also been accepted by the learned counsel for the respondents that without any show-cause or reasonable opportunity as contemplated under Section 4- A 3(b) of the Act, such penalty cannot be saddled against the Insurance Company and in this case no show-cause has been issued by the learned Tribunal, as such, that part of the penalty of 1/4th is hereby set aside.

Accordingly the appeal is modified to that extent that compensation amount to the tune of Rs.2,67,252/- shall be paid along with 12 % simple interest from the date of accident i.e. 30.04.2006 till the date of actual indemnifying the award only.

Accordingly, the appeal is partly allowed.

(Kailash Prasad Deo, J.) R.S.