Orissa High Court
FAO/186/2006 on 29 January, 2021
F.A.O. No.186 of 2006
11. 29.01.2021 This matter is taken up through Video
Conferencing mode.
Heard Mr.B. Mohanty, learned counsel for
the appellants and Mr.G.C. Samantray, learned counsel
appearing for the respondent no.2-Insurance Company.
None appears for the owner-respondent no.1 when the
matter is called.
For the death of the appellant no.2, learned
counsel for the appellants makes a request for
dispensing with appearance of appellant no.2.
Accordingly, this Court dispenses with appearance of
appellant no.2.
This appeal is of the year 2006 involving a
challenge to the judgment of the Commissioner for
Workmen's Compensation-cum-Asst. Labour
Commissioner, Cuttack, dated 07.07.2005, passed in
W.C. Case No.694-D of 1999 at the instance of the
claimants. The impugned judgment is challenged on the
sole premises that for the objection of the owner,
respondent no.1, involving W.C. Case No.694-D of
1999, vide Annexure-2, being available with the
Commissioner for Workmen's Compensation-cum-Asst.
Labour Commissioner, Cuttack, there is wrong recording
by the Commissioner that opposite party no.1 therein
did not file written statement in spite of repeated notice
issued from the Authority nor ensured personal
uks appearance to adduce evidence. An allegation has been
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made that the whole judgment is passed on the
impression that there is no objection from the owner
and there was no material to support the objection of
the owner.
Referring to Annexure-2, Mr. Mohanty,
learned counsel for the appellants submits that true the
objection, vide Annexure-2 was not in proper format,
but once it is addressed to the Commissioner giving the
case number, such document already forms a part of
record and helping effective adjudication of the lis
involved therein could not have been ignored. Not only
that for their clear disclosure in such communication to
the Commissioner while admitting the Truck involved
committed the accident and the owner also appended a
copy of the Insurance Policy of the vehicle involved, vide
Policy No.3155070020418 valid till 18.1.2000, it is in
this view of the matter, Sri Mohanty, learned counsel for
the appellants submitted that once such document
comes on record, a case of this nature should not have
been dismissed in avoidance of such document. It is also
alleged that for the details given with supply of copy of
the Insurance Policy, nothing prevented the Insurance
Company to lead evidence refuting the claim therein. It
is in the circumstance, a request is made for interfering
with the judgment involved here and remitting the
matter for fresh disposal taking into consideration
Annexure-2 herein and the documents appended
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therein.
Learned counsel for the Insurance Company
taking to the findings involving the judgment impugned
attempted to support the judgment. There is no denial
to the existence of document, vide Annexure-2 in the
Commissioner's record.
Taking into account the rival contentions,
the materials available on record, more particularly,
taking into account the information through Anneuxre-2,
this Court finds, Annexure-2 is a certified copy of
correspondence made by the owner of the vehicle to the
Commissioner for Workmen's Compensation-cum-Asst.
Labour Commissioner, Cuttack in W.C. Case No.694-D
of 1999. There is no doubt that it is only a
correspondence to the Commissioner for Workmen's
Compensation, Cuttack. However, looking to the
contents therein, this Court finds, there is clear
admission not only on the accident aspect but
information has also been provided by the owner of the
Truck involved therein with supply of copy of Insurance
Policy remaining valid on the date of accident itself.
From the period of the insurance policy claimed therein,
it becomes clear that the Truck involved in the accident
was having a valid insurance policy on the date of
accident, which took place on 30.08.1999. For such
information available; may be by way of
correspondence, there is no question of avoiding such
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information being taken into consideration in involving
the nature of the case involved therein. Nothing
prevented the Insurance Company even to have its
rebuttal to such claim.
This Court next proceeds to consider the
judgment vis-à-vis the allegation of the appellants taken
note hereinabove. Looking to the judgment impugned
herein, this Court in paragraph-3 against Issue Nos.1
and 2 finds, the Commissioner has the following
recording :-
"The O.P.1 did not file his written statement in
spite of repeated notice issued from the court nor
ensure personal appearance to adduce evidence.
The evidence from O.P.1 is, therefore, closed."
Reading this alone, this Court finds the claim of
the claimants has been considered in clear ignorance of
the objection of the owner, vide Annexure-2 herein. This
Court observes, in the event the contents, vide
Annexure-2 been taken into consideration and
depending on the evidence led by the Insurance
Company on the information available therein, decision
of the Commissioner would have been otherwise.
It is in this view of the matter, this Court
interferes with the judgment of the Commissioner for
Workmen's Compensation-cum-Asst. Labour
Commissioner, Cuttack, in W.C. Case No.694-D of 1999,
sets aside the same but however, since there is no
requirement of fresh adjudication of the dispute, this
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Court remits the matter to the Commissioner for fresh
adjudication of the matter. In the event there is request
for evidence by either of the parties, based on the
materials available through Annexure-2, parties involved
will be provided to lead evidence and a fresh judgment
shall be passed on the claim involving the claimants.
Parties are directed to appear before the Commissioner
for Workmen's Compensation-cum-Asst. Labour
Commissioner, Cuttack, in W.C. Case No.694-D of 1999
within a period of ten days along with copy of this order
for taking further direction of the Commissioner. The
entire exercise shall be concluded within a period of four
months from the date of communication of this order.
With the aforesaid observation and direction,
the FAO stands disposed of.
As restrictions are continuing for COVID-19,
learned counsel may utilize the soft copy of this order
available in the High Court's website or print out thereof
at par with certified copies in the manner prescribed,
vide Court's Notice No.4587, dated 25.03.2020.
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Biswanath Rath, J.
