- vs -
2021 Latest Caselaw 8097 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   FAO NO.887 of 2019

            Divisional Manager, Oriental                ....              Apppellant
            Insurance Co. Ltd.

                                                        Mr.P.K.Mahali, Advocate

                                           -versus-


            Rashmita Swain & Ors.                       ....            Respondents

                                                                Mr.R.Acharya,
                                             Advocate for Respondent Nos.1 to 4
                                                                Mr.S.K.Sahoo,
                                                 Advocate for Respondent No.5
                                                        Mr.R.N.Mishra, A.G.A.



                         CORAM:
                         JUSTICE BISWANATH RATH
                                         ORDER

03.08.2021

Order No.

08. 1. Filing the Appeal, it is stated, there is a serious allegation of fraud in the institution of the claim proceeding and resulting an award in favour of the Claimants also involved. By order dated 26.2.2020, this Court while admitting the Appeal to examine the allegation of fraud directed as follows :-

"Heard.

Admit.

For there is already appearance of respondents, adequate number of copies of the Appeal Memo be served on

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the learned counsel appearing for the respondents by 28.2.2020.

Considering the serious allegation that the claim application has been entertained by the Commissioner for Employees' Compensation-cum-Divisional Labour Commissioner, Cuttack on the pretext of involvement of the particular vehicle and owner on his appearance files affidavit indicating that his vehicle never involved in the incident, this Court refers the matter to the Crime Branch for having an investigation minimum at the level of D.S.P. into the allegation involved herein and submit report within a period of one and half months from the date of communication of certified copy of this order. Respective parties are directed to serve copies of claim, written statement in authority below, copy of evidence, copy of affidavit of the owner filed here and the impugned judgment on Sri S.Ghosh, learned A.S.C. for transmission of the same to the Vigilance Department for investigation and submission of report to the Court within one and half months.

A free copy of this order be handed over to the learned State Counsel for necessary action at their end."

2. Today while taking up the matter following the above direction, this Court finds, there is already submission of report by one Sri S.N.Pradhan, Deputy Superintendent of Police, C.I.D., Crime Branch, Cuttack. From the report, there is clear disclosure that the tractor and trolley bearing Regn. Nos.OR-05-AH-9789 and OR-05-AH-9790 respectively were no way either directly or indirectly involved in the incident, i.e., on the death occurrence of one Ratnakar Swain. It has also been reported that such person was also never employed as a Labourer by the owner of the vehicle involved. It has been further reported therein that even the Surveyor/Investigator's report is also found to be devoid of any truth. It further reveals from the detailed report submitted by the Deputy Superintendent of Police, C.I.D., Crime Branch, Cuttack to the Superintendent of Police has the following conclusion :-

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"Thus, it can be concluded that the Tractor and Trolley bearing Regd. No.OR-05-AH-9789 & OR-05-AH- 9790 is no way either directly or indirectly involved in the incident i.e. on the death occurrence of one Ratnakar Swain, S/o.Mohan Swain of Village-Potal, P.S.-Pipili, Dist.-Puri and he was never before employed as a Labourer by its owner.

Nilamani Mohapatra S/o.Late Fakira Mohapatra of Village-Nuapada P.S.-Kantigadia P.S.-Dharamsala, Dist.- Jajpur & Sri Basudeb Barik, S/o. Chamar Barik of Village- Karamakasi, P.S.-Rengalidam Site, Dist.-Angul (Advocate, Orissa High Court) A/p.Plot No.5F-645, Sector-9, CDA, Cuttack by adopting dishonest/fraudulent means produced manufactured/forged documents and more over, Smt. Rasmita Swain W/o.Ratnakar Swain of Village-Potal, PS-Pipili, Dist.Puri and others (Nilamani Mohapatra and Prahallad Pradhan S/o.Late Kumar Pradhan of Village-Murdhanipur, P.O.-Khellaur, P.S.-Pipili, Dist.-Puri) by adducing false evidence in E.C. Case No.376-D of 2015 in the Court of Commissioner for E.C.-cum-DLC, Cuttack (i.e. the deceased Ratnakar Swain succumbed to his injuries during course of his employment in the Tractor & Trolley bearing Regn. No.OR- 05-AH-9789 & OR-05-AH-9790) could manage to get the judgment order dated 16.8.2019 amounting to Rs.11,29,296/- as compensation. Moreover, it is ascertained during enquiry that Sri K.C.Bal, the Surveyor/Investigator of Oriental Insurance Co. Ltd., Bhubaneswar had the occasion to enquiry into the subject matter of accidental death of deceased Ratnakar Swain having been engaged by the Insurance company. The Surveyor/Investigator submitted his enquiry report dt.06.05.2016 to the Insurance Company stating that the deceased Ratnakar Swain died due to vehicular accident by Tractor & Trolley No.OR-05-A-9789/9790 which corroborates the facts mentioned in the petition filed by Smt. Rasmita Swain in E.C. Case No.376-D/2015. The enquiry of the Surveyor/Investigator is found to be false and devoid of truth during course of enquiry. Hence, the complicity of Sri K.C.Bal (Surveyor) is not above board.

This is for favour of kind information."

3. From the above, it becomes clear that a fraud case has been instituted possibly in connivance with the Claimants, the owner of the vehicle and the Surveyor/Investigator of the Insurance Company and it

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makes out a clear case for initiation of criminal proceeding under appropriate provision involving all such persons involved in such transaction and be tried.

4. By filing an affidavit, a request is made to this Court by the learned counsel for the Respondents for interfering with the impugned award and setting aside the same but however with exoneration of the Parties involved then. This Court declines to entertain such request on the premises that there might be several fraud cases under the provision involved herein but escaped scrutiny, however once it has been brought to the notice of this Court on the fraud being played in obtaining an award under the Employees' Compensation Act and upon investigation by the Competent Authority, it has been ascertained that there has been in fact playing of fraud in obtaining such award, this Court cannot close its eyes to such incidents. Unless a stricter action is taken against the culprits involved herein, there cannot be check on such attempts.

5. This Court for the above reason, while interfering with the impugned award for being passed on fraudulent attempt of all the above persons sets aside the same directing the Deputy Superintendent of Police, C.I.D., Crime Branch, Cuttack to lodge F.I.R. involving all possible participants in such fraud transaction and appropriate proceeding may also be drawn by the Competent Authority involving the Surveyor/Investigator of the Insurance Company.

6. For setting aside the impugned award involved herein being obtained by fraud, the awarded amount deposited before the Competent Authority shall be returned to the Company with interest as accrued as on date within a period of fifteen days from the date of receipt of copy of this order.

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7. The FAO stands disposed of accordingly.

8. Issue urgent certified copy.

9. So far as the report of the Crime Branch is concerned, a free copy of this order be supplied to Sri R.N.Mishra, learned A.G.A. for appropriate action at the earliest.

(Biswanath Rath) Judge

Manoj Kumar Rout