Md. Salahauddin vs Suresh Kumar Sharma
2023 Latest Caselaw 4015 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         M.A. No. 371 of 2019
1. Md. Salahauddin
2. Sufiya Khaton @ Sofiya Praveen
3. Reshma Praveen
4. Zeba Praveen
5. Gazala Praveen
6. Sagufta Praveen                                 ...... Appellants
                               Versus
1. Suresh Kumar Sharma
2. Shri Ram General Insurance Company Limited, Resident of E-8, E.P.I.C.,
RIICO, Industrial Area, Sitapur, Jaipur through Branch Manager, Shriram
General Insurance Company Limited, R/o 5th Floor, Segnature Tower, Katras
Road, Matkuria P.S. and Post Dhanbad, District- Dhanbad
                                                   ......Respondents
                                .....
For the Appellants : Mr. Arvind Kumar Lall, Advocate
For the Res. No.2    : Mr. Ashutosh Anand, Advocate

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                       PRESENT
      HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                          -----
                       JUDGMENT

C.A.V. On 06.09.2023 Pronounced On: 17.10.2023

1. Present appeal is preferred against Judgment/Award passed in employees Compensation Case No. 8/2016 dated 22.04.2019 by Sri Rajendra Bahadur Pal, Presiding Officer, Labour Court-cum-Commissioner Employees Compensation, Deoghar whereby and whereunder the learned commissioner has awarded the compensation amount of Rs. 2,00,000/- (Rs. Two Lacs) only in favour of claimants under the scheme of personal accident cover as per the terms and conditions of Insurance Policy.

2. Factual matrix of the case is that one Md. Javed @ Md. Zahid @ Md. Sahid Khan was employed as a driver by respondent no.1 to drive his scorpio vehicle no. JH 11J 7311. It is alleged that in the intervening night of 29/30.05.2015 while the deceased was on duty and working under instructions of the employer was returning to home after dropping the relatives of respondent no.1 and reached near

Palganj More, under Pirtanr Police Station, District Giridih around midnight, suddenly the vehicle fell into a ditch resulting instantaneous death of the driver Md. Javed @ Md. Zahid @ Md. Sahid Khan. The appellants are legal heirs and representatives of the deceased driver. In connection with above accident Pirtanr P.S. Case No. 34 /2015 was registered under Section 379/304 A IPC and after investigation final form has been submitted. The owner of the vehicle did not pay any compensation on account of death of employee Md. Javed @ Md. Zahid @ Md. Sahid Khan hence, the case was lodged before the Presiding Officer cum Commissioner under Employment Compensation Act, 1923. It is further alleged that the offending vehicle was insured with respondent no.2 at the relevant time of accident vide insurance policy no. 326023/31/15/00036 with effect from 21.01.2015 and valid upto 20.01.2016. The deceased was 25 years old young boy and getting monthly salary of Rs. 8,000/- (Eight Thousand) besides diet expenses Rs. 100 daily. The legal representatives and dependents of the deceased/the appellants have claimed compensation amount to the tune of Rs. 10,000,00/- (Rs. Ten lacs) along with Rs. 25,000/- (Twenty Five Thousand) towards funeral expenses and interest incurred thereon.

3. After service of notice, both the respondents nos. 1 and 2 appeared and filed their respective written statement before the learned Commissioner.

Respondent no.1 has admitted the ownership of Scorpio vehicle No. JH11J 7311, which was insured with respondent no. 2 on the relevant date and time of the accident. It is also admitted that on instruction of this O.P. No.1, the deceased had gone to drop his relatives at Hazaribag and while returning, met an accident and died but, he has denied payment of salary Rs. 8,000/- (Eight Thousand) along with diet allowances Rs. 100 per day. It is also stated that deceased was not employed as a regular driver and no monthly salary was fixed.

Respondent no. 2, Sri Ram General Insurance Company Ltd. in its written statement has admitted that the offending vehicle was insured with this company on the relevant date and time of the accident but denied any liability to indemnify the insured because the accident took place due to rash and negligent driving by the driver himself. It is further stated that the offending vehicle is a private vehicle and was being used for commercial purpose as illegal cab, hence, Insurance Company

is not liable to pay any compensation amount and the owner himself is liable to pay the amount of compensation, whatsoever may be awarded in this case.

4. The learned court below has settled following issues for adjudication:-

(i) Is the application of the claimants maintainable?

(ii) Whether the claimants got cause of action for the claim?

(iii) Whether Md. Javed @ Md. Zahid @ Md. Sahid Khan was employed as driver of the vehicle no. JH11J 7311

(iv) Whether accident took place when Md. Javed was driving vehicle no. Jh11J 7311 under instruction of O.P. No.1?

(v)Whether age of the driver was 25 years and his salary was Rs. 8,000/- per month + Rs. 100 per day as khuraki?

(vi)Whether employer was in possession of all relevant documents of the vehicle and they are valid and effective on the alleged date of incident?

(vii)Whether claimants are entitled to get claim? If so, from whom and to what extent?

5. It appears that after filing written statement the respondent no.1 owner of the vehicle remained absent during whole proceeding and only O.P. No.2 participated and did cross examination of the petitioners/appellants witnesses. However, no evidence was adduced by respondent no.2.

6. The learned court below while deciding issue no. 3 has taken a very strange view that the O.P. No.1 although not examined on oath, in his written statement has stated that deceased was not a regular employee under him, hence burden of proving employment shifted at the petitioner's shoulder. P.W. 2 and P.W. 3 are sisters of the deceased, who have deposed that the deceased was employed as a driver by the O.P. No. 1 in the month of march 2013 but there is no documentary evidence to prove this fact, hence, it was held that the relationship of employee and employer had not been proved.

While deciding issue no.4 the learned court below considering the oral evidence of witnesses as well as contents of FIR arrived at conclusion that at the relevant time of accident Md. Javed was driving the vehicle no. JH11J 7311 under instruction of its owner O.P. No.1.

As regard issue no.5, the learned court below has considered only written statement of respondent no.1 along with C.C. of F.I.R. and final form submitted in the police case and arrived at conclusion that the deceased driver was hired for only one trip and he was not an employee of O.P. No.1. The statement of witnesses regarding monthly salary of Rs. 8000/- is not acceptable. Hence, this issue becomes redundant.

As regards issue no.6, the learned court below has considered the relevant documents of vehicle and held that the vehicle was insured with respondent no.2 under policy no. 326023/31/15/00636 w.e.f. 21.01.2015 to 20.01.2016 registered in the name of respondent no.1 and the deceased driver was holding a valid driving license of LMV vide Driving License No. 237/03/proff/Grd. The date of birth of the driver is 16.03.1980 and the Driving License was valid upto 11.06.2015. Accordingly, this issue was decided in affirmative.

While deciding issue no. 7, the learned court below has committed gross illegality by recording findings that under the insurance policy, personal accident for owner/driver is fixed Rs. Two Lacs. The driver was hired for a single trip as such his dependents are entitled for personal accident cover of Rs. 2,000,00/- (Two Lacs Only) . Accordingly, O.P. No.2 was held liable to pay Rs. 2,000,00/- (Two Lacs) to the petitioners/appellants as compensation and directed to pay the award amount within two months from the date of the order.

7. Assailing the impugned Judgment/Award, the learned counsel for the appellants has vehemently argued that the impugned Judgment/Award is contradictory to mandatory provisions of Employee's Compensation Act, 1923 and against the evidence available on record. The learned court below has erred in recording findings while calculating the compensation amount taking into consideration the personal accident coverage of the insurance policy which has got no overriding effect over the claim made under provision of Employees Compensation Act, 1923. The learned court below has further committed illegality by ignoring the unrebutted evidence of claimants showing employer & employee relationship between deceased and respondent no.1. The issue regarding income of deceased has been considered redundant without specifying any reasons. It is further submitted that the learned court below ought to have taken into consideration that the Employee's Compensation Act is a self-contained code as regards computation

of compensation amount on the basis of prescribed formula and mandatory provision as regards interest at the rate of 12 % from the date of accident under Section 4A(3)(a) of the Act. The Penal compensation may also be awarded against the employer. The Insurance Company cannot absolve itself from the liability of payment of entire compensation amount along with interest except the penalty imposed on the employer.

8. On the basis of argument of learned counsel for the appellant following substantial question of law was formulated:-

"Whether the commissioner of workmen's compensation committed a perversity by confining the compensation amount only to the personal accident cover of Rs. 2,000,00/- (Two Lacs) , eventhough as per exhibit 31 the Schedule of premium of the Insurance Policy, the employer has paid premium in respect of legal liabilities to employees- IMT-29?

9. I have already heard the arguments of learned counsel for both parties. Respondent no. 1, owner of the offending vehicle did not turn up, in spite of personal service of notice.

10. It is submitted by learned counsel for the appellant that the finding recorded by the learned court below on employer & employee relationship between deceased and respondent no.1, income of the deceased and calculation of compensation amount only on the basis of personal accident cover insurance policy is totally perverse and beyond the specific provisions of Employee Compensation Act, 1923. The case is fit to be remitted back for fresh decision on all issues by the Court below in accordance with law.

11. Per contra the learned counsel for the respondent no.2, Mr. Ashutosh Anand has submitted that the appellants has not adduced any cogent and reliable evidence to substantiate their claim in material particulars, hence, impugned Judgment/Award is absolutely justified under law and requires no interference.

12. I have given anxious consideration to overall aspects of this case along with findings recorded by learned trial court on each issues and find that the learned trial court has passed the impugned award in very cursory and mechanical manner without appreciating the oral testimony of witnesses on core issues regarding employee & employer relationship between deceased and respondent no.1. Insistence upon documentary evidence in this regard by the learned court below is

neither desirable nor compulsory. No reason has been assigned by the learned trial court as to why he has disbelieved the oral testimony of witnesses as regards status of deceased as driver and on the particular date of accident admittedly employed by the respondent no.1 for his own purpose and the accident took place in the course of employment. The learned court below has further committed serious illegality against the provisions of the above Act regarding computation of compensation amount, penal compensation as well as mandatory provision of interest and has also ignored the terms and condition of insurance policy while passing the award. The learned court below has laid much emphasis upon averments of written statement of respondent no.1 who, admittedly left the proceeding without adducing any evidence. Similarly, the insurance company has also not adduced any evidence in support of its argument regarding extent of liability. The impugned award appears to be absolutely illegal, perverse and not justified under law. The learned court below has not discharged his bounden duty to pass a reasoned Judgment/Order.

13. In view of aforesaid discussion and reasons, I find merits in this appeal which is hereby allowed and the impugned Judgment/Award is set aside. The case is remitted back to the court below to rehear the case and pass a fresh Judgment/Award in strict compliance with the provisions of Employees Compensation Act, 1923.

(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Rajnish/-