Officer-In-Charge vs Pratap Chandra Panda And Another
2021 Latest Caselaw 3563 Ori

          HIGH COURT OF ORISSA: CUTTACK

             F.A.O. Nos.24, 25, 26 & 27 of 2011

In the matter of Appeals under Section 30 of the Workmen's
Compensation Act, 1923.
                           -----------
In FAO No.24 of 2011 :
Officer-in-Charge, Bajaj Allianz General
Insurance Co. Ltd., At-2C, Kharavela Nagar,
Bhubaneswar, Dist.-Khurda, represented
through Assistant Manager (Legal),
Bajaj Allianz Gen. Ins. Co. Ltd., One Jan Path,
Kharavela Nagar, Bhubaneswar, Dist.- Khurda.
                                        ....        Appellant

                                 Versus

Pratap Chandra Panda and another.     ....          Respondents

In FAO No.25 of 2011 :
Officer-in-Charge, Bajaj Allianz General
Insurance Co. Ltd., At-2C, Kharavela Nagar,
Bhubaneswar, Dist.-Khurda, represented
through Assistant Manager (Legal),
Bajaj Allianz Gen. Ins. Co. Ltd., One Jan Path,
Kharavela Nagar, Bhubaneswar, Dist.- Khurda.
                                        ....        Appellant

                                 Versus

Smt. Kalibudhi Desamajhi and others. ....           Respondents

In FAO No.26 of 2011 :
Officer-in-Charge, Bajaj Allianz General
Insurance Co. Ltd., At-2C, Kharavela Nagar,
Bhubaneswar, Dist.-Khurda, represented
through Assistant Manager (Legal),
Bajaj Allianz Gen. Ins. Co. Ltd., One Jan Path,
Kharavela Nagar, Bhubaneswar, Dist.- Khurda.
                                        ....        Appellant
                                        2




                                           Versus

       Smt. Rinki Malika and others.       ....        Respondents

       In FAO No.27 of 2011 :
       Officer-in-Charge, Bajaj Allianz General
       Insurance Co. Ltd., At-2C, Kharavela Nagar,
       Bhubaneswar, Dist.-Khurda, represented
       through Assistant Manager (Legal),
       Bajaj Allianz Gen. Ins. Co. Ltd., One Jan Path,
       Kharavela Nagar, Bhubaneswar, Dist.- Khurda.
                                               ....          Appellant

                                           Versus

       Smt. Madelina Nayak and others.          ....         Respondents


              For Appellant       ...    M/s. Adam Ali Khan &
                                       Mr. S.K. Mishra
                                       (In all cases)

              For Respondents     ...    M/s. B.N. Rath,
                                       Mr. A.K. Jena &
                                       Mr. A.K. Dash

                                       (Respondent No.1 in FAO No.24 of
                                       2011)
                                       (Respondent Nos.1 to 7 in FAO
                                       Nos.25 of 2011)
                                       (Respondent Nos.1 to 3 in FAO
                                       Nos.26 of 2011)
                                       (Respondent Nos.1 to 5 in FAO
                                       Nos.27 of 2011)

                              JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing and Judgment : 15.03.2021

Biswanath Rath, J. All these four appeals arise out of a common

judgment dated 22.12.2010 involving W.C. Case Nos.11/

2008, 12/2008, 13/2008 & 14/2008 being decided by

Commissioner for Workmen's Compensation, Berhampur,

Ganjam in common hearing of four claim applications

involving an award in favour of one injury case and rest three

involving death cases.

2. In spite of notice, the Owner is not appearing in

any of the matters. This matter is taken up only hearing the

counsels for the appellant-Insurance Company and claimant-

respondents.

3. Common fact involving the case is that injured

involving the first claim case, i.e. W.C. Case No.11 of 2008

sustained injuries by an accident, arising out of and in course

of his employment as a Driver in the Tractor bearing

Registration No.OR-12A-1785 and Trolley bearing No.OR-12-

A-1786 being owned by one Prakash Baliarsingh-O.P.1. Fact

further reveals that on 17.3.2020, when the injured was

going from Brahmanigaon to Hatimunda being an employee

under O.P.1, the vehicle capsized near Mandipanka while he

was getting up a ghat, the vehicle went out of control and it

got capsized. Injured driver was shifted to M.K.C.G. Medical

College Hospital, Berhampur by his brother-in-law, Dibakara

Panda and co-brother-in-law Narayana Panda of his village.

Injured remained in hospital as an outdoor patient for 15 days

and ultimately discharged from the hospital on 31.03.2008.

On the premises, he was under employment of O.P.1. and

was getting wages @Rs.4,000/- per month and bhatta of

Rs.20/- per day, he was hardly 30 years at the time of the

accident and having a valid Driving Licence being D.L.

No.505/06-07. It was also claimed by the injured that at the

time of accident 3 coolies namely, Janara Desmajhi, Ranjita

Kumar Nayak and Saraja Malika, who claimed to have died in

the said accident. As a result, four claim cases one involving

injury and three involving death cases have been filed.

So far as death case involving claim of Smt.

Kalibudhi Desmajhi along with her minor children in filing a

claim case involving W.C. Case No.12 of 2008 involving the

same accident submitted that the deceased involved herein

was a Coolie by profession under O.P.1 and he was getting

wages of Rs.4,000/- per month at the time of his accidental

death. Here the deceased was 35 years old.

So far as accident involving Saraja Malika is

concerned involving W.C. Case No.13 of 2008, here the

claimants being the legal heirs also while claiming the

deceased was a Coolie under O.P.1 at the time of death and

he was earning Rs.4,000/- per month as wages and he was

aged about 22 years old at the time of his accidental death.

So far as deceased Ranjita Kumar Nayak is

concerned involving W.C. Case No.14 of 2008, the claimants

claimed that the death of the deceased occurred while

working as a Coolie under O.P.1. It was further claimed that

deceased was in receipt of Rs.4,000/- per month as wages

and he was aged about 25 years at the time of death.

4. On being noticed, O.P. Nos.1 and 2 the Owner and

Insurance Company had entered appearance and filed their

written statement in W.C. Case No.11 of 2008. As per Owner,

admittedly the injured workman was in duty as a Driver in the

Tractor bearing Registration No.OR-12A-1785 and Trolley

bearing Registration No.OR-12A-1786 on the date of accident.

He also claimed that the Driver had a valid driving licence at

the relevant point of time and the vehicle was also insured

under Policy No.FP0610011294, which was valid upto

8.2.2009.

Similarly, in filing written statement in W.C. Case

No.12 of 2008, the Owner while admitting that the deceased

was working as a Labourer in the tractor and trolley involved

in the accident and he has also admitted to be paying this

Cooley Rs.3,000/- per month to the deceased labourer. This

was also the claim of the Owner in respect of the deceased

involving W.C. Case No.13 of 2008 and W.C. Case No.14 of

2008.

Similarly on its appearance, the Insurance

Company took a specific plea that the Cover Note on the basis

of Insurance Company claim made was never issued in

respect of the above mentioned vehicle and therefore a plea

was taken that there was no contract between the Owner of

the vehicle as well as the Insurance Company involving the

vehicle involved herein. It is on the premises and as there is

no contract between the Insurance Company and the Owner,

the Insurance Company claimed that no liability can be fixed

on the Insurance Company. Getting into the pleadings of the

parties, the Authority below framed the following issues :

ISSUES

Issue No.1: "Whether Pratap Chandra Panda, Janara Desmajhi, Saraja Malika and Ranjeet

Kumar Nayak were a workman under W.C. Act, 1923 and sustained injuries and died in an accident arising out of and in course of their employment ?"

Issue No.2: "Whether the quantum of compensation claimed in above 4 cases are due or any part thereof and if so by whom payable ?"

5. Parties also in support their case led evidence.

Ultimately answering the findings in favour of the claimants,

the Authority below has passed the award in favour of the

claimants thereby directing O.P.2 therein and the appellant

herein to deposit a sum of Rs.36,693/- as compensation

against the injured involving W.C. Case No.11 of 2008,

Rs.2,27,756/- as compensation against the deceased in W.C.

Case No.13 of 2008, Rs.2,27,756/- as compensation against

the deceased in W.C. Case No.14 of 2008 and Rs.2,06,913/-

as compensation against the deceased in W.C. Case No.12 of

2008, thus making a sum total compensation of

Rs.6,99,118/- (Rupees Six lakhs ninety nine thousand one

hundred eighteen) only as against all the claimants together

and to be paid by Insurance Company for the vehicle involved

was covered by insurance and with further direction in the

event failure of deposit the amount within 30 days, there shall

be charge of 7½% interest over the awarded amount from

31st day of pronouncement of this judgment.

6. Assailing the judgment, Sri A.A. Khan, learned

counsel for the appellant-Insurance Company taking this

Court to the plea of the Insurance Company-O.P.2 therein

involving a flat denial to have issued any such Cover Note in

favour of the Owner also taking this Court to the evidence led

by the Insurance Company getting into the G.R. Case Record,

Final Form, Statement, Properties Seizure Memo, Zimanama

etc. and also the paper publication in odia daily 'The Dharitri'

newspaper dated 15.2.2008 contended that for the material

support in favour of the Insurance Company, the finding on

the aspect of liability against the Insurance Company

becomes bad.

7. Sri B.N. Rath, learned counsel for the claimant-

respondents taking this Court to the plea of the parties in the

Authority below and their evidence and further taking this

Court to the evidence of OPW 2 contended that for their own

submission the Cover Note was in almirah and for there being

no criminal action against the person involved, the finding on

the fixing of the liability on the Insurance Company is

justified. Sri Rath also claimed that evidence on Cover Note

since beyond pleading has no credibility thus making the

award justified.

8. Considering the rival contention of the parties this

Court finds there is no dispute that the accident has occurred

involving one injury and three death cases involving the

Tractor bearing Registration No.OR-12A-1785 and Trolley

bearing No.OR-12A-1786 owned by one Prakash Baliarsingh,

the Owner, resulting filing of W.C. Case Nos.11, 12, 13, 14 of

2008. This Court also from the LCR particularly from written

statement filed by the O.P.1 therein finds there is clear

admission by the Owner that the accident involving the

injured and the deceased involved in the vehicle bearing

number indicated hereinabove, the Owner has also admitted

the salary/wage aspect involving the injured and the

deceased. Taking support of the Policy No.FP0610011294

which was valid upto 8.2.2009, the Owner however claimed

the liability on such accident should be shifted to Insurance

Company at this stage. This Court finds the Insurance

Company filing the written statement on a flat denial on the

premises that the policy sought to be involved by the Owner

was a Cover Note lost from the custody of the Insurance

Company. In the evidence to substantiate such case, it

appears, the Insurance Company also relied on paper

publication in the odia daily 'The Dharitri' newspaper dated

15.2.2008 bringing to the notice of all concerned about loss of

such Cover Note. It is in this view of the matter, the paper

publication also is clear attempt of Insurance Company on

challenge to the Cover Note and loss of Cover Note further

paper publication on such issue cannot be lost sight of. This

Court thus finds the Insurance Company is able to establish

that the claim made here is on the basis of a lost policy from

the custody of the Insurance Company. A party comes to

Court with fraud plea looses all credibility and cannot claim

equity on the basis of non-existing materials. Further on such

plea of the Insurance Company nothing prevented to the

Owner of the vehicle or the claimants at least to bring forth

the payment receipt to satisfy that in fact, there exists such a

valid Cover Note. In such view of the matter, this Court finds

the finding of the Authority below so far as it relates to

liability on the Insurance Company becomes illegal and

contrary to material available on record.

For the observation of this Court that the Owner

has not only admitted the accident and the resultant death of

the injured as well as deceased involving herein and for the

clear admission on the salary/wage aspect involving such

person, this Court while interfering in the award on the

liability aspect only maintains and sets aside the direction

involving saddling the liability on the Insurance Company and

shifts the same to the Owner the compensation each of the

claimant refused to be entertained.

9. For the modified award, it is the responsibility of

the claimants to recover the amount from the Owner of the

vehicle following due process of law. The amount since in

deposit of the court below, the same shall be released along

with interest accrued in the meantime in favour of the

Insurance Company on production of copy of the judgment of

this Court.

10. The four appeals stand disposed of but with the

above modification. There shall be no order as to cost. LCR be

returned to the concerned Authority forthwith.

............................................ BISWANATH RATH, J.

Orissa High Court, Cuttack.

Dated the 15th day of March, 2021/Uks, PA