The Manager And Constituted ... vs Smt. Pramila Mohapatra & Ors
2021 Latest Caselaw 3786 Ori

          ORISSA HIGH COURT :: C U T T A C K

                       F.A.O. No.497 of 2013

          (In the matter of an application under Section 30 of
  the Workmen's Compensation Act, 1923 as amended and renamed as
                the Employees Compensation Act, 2009)


The Manager and Constituted Attorney,           : Appellant
M/s. New India Assurance Co.Ltd.,
Cuttack

                        -Versus-

Smt. Pramila Mohapatra & Ors.                   : Respondents



For Appellant                      :    M/s. P.K. Mishra-1,
                                          P. Mishra

For Respondent Nos.1 to 3          :    M/s. B. Mohanty,
                                             S. Khuntia



                         JUDGMENT

PRESENT:-

THE HONOURABLE MR. JUSTICE BISWANATH RATH

Date of hearing & Date of Judgment : 18.03.2021

Biswanath Rath, J. This appeal involves a challenge to the judgment & award being passed by the learned Commissioner for Workmen's Compensation-cum-Deputy Labour Commissioner, Cuttack in W.C. Case No.143-D/2002 on 20.09.2013.

2. Short background involved in this case is that the claim application has been filed at the instance of the wife as well as minor son of the deceased claiming compensation to the tune of Rs.3,00,000/- on the premises that the deceased being a workman while performing his duty as a helper in the Bus No.OAC-7723 belonging to one Durga Prasad Mohanty on 4.08.2001 at about 8 A.M. received bodily injury in the premises of Ananda Fabricator & Engineering Company at Jagatpur, Cuttack. It is averred therein that the death of the deceased is caused arising out of and in course of his employment under the Opposite party No.1 therein. Upon notice the owner i.e. Opposite Party No.2 therein neither appeared nor contested the matter. It is only the Opposite Party No.2 the Insurance Company appearing in the claim case contested the matter by filing written statement inter alia contending therein that there is no relationship of workman and employer between the deceased and the opposite party no.1 and accordingly disputed each and every claim made by the claimants. The Insurance Company also took the stand that since the owner doesn't appear in the matter, there appears, there is collusion in between the owner and the claimant party. In the written statement the Insurance Company also disputed about any accident to have been taken place involving the deceased involving the Bus in question. The claim is being challenged by the Insurance Company on the premises of two fold; first one is, there is no employer and employee relationship between the deceased and the owner of the vehicle and the second one is; the Bus in question has not made the accident claimed in the claim application. In these premises the claim of the claimant was objected.

3. The Authority below getting into the pleadings framed the following issues:

" ISSUES

1. Whether the deceased was a workman as a helper under O.P. No.1 within the meaning of W.C. Act, 1923?

2. Whether the accidental death of the deceased workman was arising out of and in course of his employment?

3. Whether the applicants are entitled to get compensation as claimed by them or any part thereof?

4. Whether the Opp. Parties are liable to pay compensation? If so, by whom payable?"

The claimants as well as the Insurance Company have examined two witnesses and one witness respectively; as P.Ws.1 & 2 and O.P.W.1. Based on the pleadings of the Parties, the Authority below while answering all the issues in favour of the claimant allowed the claim application; thereby based on a findings that at that point of time the Bus was covered by the insurance policy, directed the New India Assurance Co. Ltd. to deposit a sum of Rs.2,95,590/- as compensation within thirty days. It was also observed therein that failure in making such deposit within thirty days the Insurance Company would be liable to pay interest @12% per annum.

4. Challenging the judgment impugned herein, learned counsel for the Appellant taking this Court to each of the plea taken in the written statement and the counter more particularly to the strong dispute made by the Insurance Company on both account submitted that there is no employer and employee relationship between the deceased and the owner of the vehicle and further there is also no involvement of the Bus involving any accident in question and also no such accident has occurred in course of and arising out of employment involving such Bus. Taking this Court to

the evidence of the O.P.W 1, an attempt is made to establish that for the availability of relevant documents like F.I.R, the final inquiry report, the inquest report, dead body challan, postmortem report, Xerox copies of the R.C. Book of the Bus No.OAC-7723, the claim of the claimant should be rejected. Further taking this Court to the vital investigation involved herein, learned counsel for the Appellant also submitted that for the clear information through the aforesaid documents, there is failure on the part of the claimant to establish that there was employer and employee relationship between the deceased and the owner of the vehicle and the accident has occurred involving the Bus in question. Further taking this Court to the final report involving unnatural and sudden death of the deceased, an attempt is also made through the contents therein to establish that the reason of death has also come to be doubt. It is, in the above premises, the judgment & award impugned herein, is challenged on the premises that the findings of the authority below in respect of major issues such as Issue Nos.1 & 2 remains contrary to the materials available on record. It is, in the premises, a request is made to interfere in the impugned judgment and award by setting aside the same.

5. Learned counsel for the claimants, on the other hand, taking this Court to the evidence of P.Ws.1 & 2 contended that even though the owner did not come to the Court and contested the proceeding, however, through the independent witness i.e. P.W. 2 learned counsel for the claimants has been able to establish that there was master and servant relationship between the deceased and the owner of the vehicle and even has gone to establish the nature of accident so as to establish the case of the claimants. It is further contended that even though so many documents have been

relied on by the Insurance Company, almost all documents have been provided by the claimants also to establish their case.

It is, in the above premises and for the material support to the findings of the authority below in passing the impugned judgment & award, attempt is made by the learned counsel for the claimants to justify the impugned award and judgment.

6. Considering the rival contentions of the parties, this Court finds, admittedly the owner did not appear, but however, the claimants in their attempt not only produced so many documents but also examined two witnesses. Getting into the evidence of P.W.2 this Court finds, the P.W.2 an independent witness; may be a neighbor of the deceased; has disclosed in his evidence that he had known the deceased to have been working as helper in the Bus in question, besides that this independent witness has even come to state before the authority in evidence that some days prior to the incident taken place, in his presence the owner of Bus handed over a substantial amount to the deceased under the premises of employee and employer relationship. Besides this, the claimants also produced so many documents at least establishing that there is accident involving the deceased involving the Bus in question. The insurance policy has not been produced. It has also been established that there is clear finding that the policy was valid at the relevant point of time and the D.L. has been produced. It is, on the other hand, on scan of the evidence of the O.P.W.1, this Court finds, even though there have been so many pleas in the written statement and so many reference have been made during course of argument, but the O.P.W 1 has hardly given any credible evidence. It also appears, there has been no attempt to dislodge the claim of the claimants on the basis of so many documents through cross-

examination of the claimant's witnesses. Even though the learned counsel for the Insurance Company took support of the documents during course of hearing in appeal, on scan of the evidence of the O.P.W 1, this Court finds, there is no reference of any such documents resulting there is no endeavor by the Insurance Company in spite of opportunity of contest being provided in the Court below to demolish the claim of the claimants. It is, at this stage of the matter, looking to the observation and findings of the Authority below more particularly the observation on Issue Nos.1 & 2 this Court finds, the Authority below on close scrutiny of the materials available on record, the evidence laid down by both the contesting parties, has come to the categoric findings establishing that there was employer and employee relationship between the deceased and the owner of the vehicle and also establishing that the accident has occurred involving the Bus in question. In this view of the matter, this Court finds, there is no case to be considered on the basis of the submission made on behalf of the Insurance Company. In such view of the matter, this Court declines to interfere in the impugned judgment & award.

7. The F.A.O thus stands dismissed.

As the amount is already deposited and kept by the authority below in fixed deposit, the awarded amount along with interest accrued thereon in between shall be released in favour of the claimant(s) within a period of fifteen days from the date of communication of a copy of this order.

................................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 18th March, 2021/ Ayaskanta Jena, Sr. Steno