Orissa High Court

Sr.Executive vs Sabitri Mandal & Others on 19 March, 2021

                    ORISSA HIGH COURT: CUTTACK
                             F.A.O. No.586 of 2019

        In the matter of an appeal under Section 30 of the Workmen's
        Compensation Act, 1923;

                                      ----------

Sr.Executive, IFFCO-Tokio General Insurance Co. Ltd., 4th Floor, Mangalam Nivas, Bajrakabati Road, Cuttack ... .... ... Appellant

-versus-

        Sabitri Mandal & others                 ...    ...        ...    Respondents


             For Appellant              : Mr.A.A.Khan, S.K.Mishra &
                                             S.K.Sahoo.

             For Respondents            :   M/s. S.Sen & S.Sahoo
                                                    (For Respondent Nos.1,2 & 3)
                                               M/s. K.C.Nayak, M.K.Swain &
                                                   A.Sahu.
                                                         (For Respondent No.4)


                             Date of Hearing    : 15.03.2021
                             Date of Judgment : 15.03.2021


             THE HONOURABLE MR. JUSTICE BISWANATH RATH


Biswanath Rath,J.     This is an appeal at the instance of the Insurance

Company under Section 30 of the Workmen's Compensation Act,

1923 arising out of judgment passed by the Commissioner for

Employees' Compensation-cum-Divisional Labour Commissioner,

Jajpur in E.C. Case No.63 of 2014.

2. Short background involving the case is that wife

and children as claimants filing the claim application brought the

case that there is death of Purusottam Mandal in a vehicular

accident alleging to have arising out of and in course of

employment while discharging his duty as a helper in TATA ACE

bearing Registration No.OR-02-AW-8387 belonging to the

opposite party no.1. It is further disclosed that on 01.05.2013

while the deceased was coming in the above TATA ACE in the

capacity of helper from Kendrapara side towards Cuttack and on

the way near Jagatpur at about 7.30 P.M. the driver of the

vehicle parked the vehicle on the left side of the road and both

of them went to take their tiffin before they start the onward

journey. It is stated that after taking tiffin, while the helper and

the driver were returning to their vehicle, at that time one

unknown vehicle dashed the helper Purusottam Mandal and fled

away from the spot. After the accident, the deceased lost his

sense and being picked up by PCR Van of Jagatpur Police Station,

the helper was shifted to S.C.B. Medical College & Hospital,

Cuttack. While undergoing treatment, the helper died on

02.05.2013. On the premises that the deceased was about 30

years at the time of accident was working as helper in the vehicle

and was getting Rs.7,000/- as monthly salary from the owner,

claim application was filed claiming a sum of Rs.6,00,000/- as

compensation under the provisions of the Employees'

Compensation Act, 1923.

2. On receipt of notice, the owner of the vehicle filed written

statement admitting the employment as well as death of the

helper in course of and arising out of his employment. The

opposite party no.2 on his appearance filed written statement but

however strongly disputing the claim of the claimants specifically

disputing in course of or arising out of employment. The

Insurance Company also taking support of the medical

documents as well as police papers and for the disclosures in the

Bed-Head ticket attempted to make out a case that there is death

on account of taking poison and not involving in course and

arising out of employment. Basing on the pleadings available on

record, the authority below framed the following issues:

(i) Whether the deceased was an "employee" within the meaning of the E.C.Act, 1923?

(ii) Whether the accident arose out of and in the course of employment of the deceased under OP No.1

(iii) Whether the applicants are entitled to get any compensation? If so, what would be amount of compensation and by whom payable?

3. On the pleadings as well as material available on record,

the authority below rendering finding in favour of the claimants,

however directed payment of Rs.5,52,510/- by the Insurance

Company for there involvement of insurance policy involving the

vehicle where the deceased was engaged.

4. Challenging the impugned judgment passed in E.C. Case

No.63 of 2014 and referring to the plea of the Insurance

Company-opposite party no.2 in the authority below, Sri Khan,

learned counsel for the appellant-Insurance Company contended

that for the documents taken support as well as U.D. FIR, Final

Report, Enquiry Report, Postmortem Report, Inquest Report and

dead body challan of the U.D. GR No.170 of 2013 and more

particularly, Bed-Head ticket obtained through Right to

Information Act by the Investigator of the Insurance Company,

attempt was made to make out the case that there involves no

accident. It is on the other hand for the material disclosed in the

Bed-Head ticket and the police papers, it is claimed that there is

clear case of death of the deceased by taking poison. Sri Khan,

learned counsel for the Insurance Company also taking the plea

that there is no establishment of accident either by the claimants

or by the owner of the vehicle, there is no proving of accident. It

is in the premises, a request is being made to interfere in the

impugned judgment and setting aside the same. Sri Khan,

learned counsel for the Insurance Company also relies on two

decisions of the Hon'ble Supreme Court in the case of

Malikarjuna G. Hiremath Vs. Branch Manager, Oriental

Insurance Co. Ltd. and Another, 2009 (2) T.A.C. 17 (S.C.) as

well as in the case of Mamtaj Bi Bapusab Nadaf and others

Vs. United India Insurance Co.Ltd. and others, 2010 ACJ

2661. Taking support of above judgments Sri khan, learned

counsel submitted that on the basis of aforesaid judgments of

the Hon'ble Apex Court, a claim is made for there is a ground on

behalf of the Insurance Company, this Court may interfere with

the impugned judgment and set aside the same.

5. Considering the rival contentions of the parties, this Court

finds the claimants have a specific case that while Purusottam

Mandal, the deceased was proceeded in TATA ACE bearing

Registration No.OR-02-AW-8387 belonging to the owner, namely,

Ajij Abdul, on 01.05.2013 the deceased working in the capacity

of helper in the said vehicle at about 7.30 P.M. the driver of the

said vehicle kept the vehicle on the left side of the road near

Jagatpur and the driver and the helper both went to take tiffin.

Pleading further disclosed that after taking tiffin, while the

deceased and driver were returning, at that point of time, an

unknown vehicle dashed the deceased Purusottam Mandal,

deceased and after the accident finding the deceased senseless,

he was shifted to S.C.B. Medical College & Hospital by a PCR Van

belonging to Jagatpur Police Station. It is also pleaded that while

the deceased Purusottam Mandal was undergoing treatment in

S.C.B. Medical College & Hospital, Cuttack, he died. To

substantiate his case, it appears, the owner as opposite party

no.1 also on its appearance in Court submitted that the vehicle

was not involved in the case but, however, pleaded that he was

the owner of TATA ACE bearing Registration No. OR-02-AW-8387

and the deceased was an employee in the said truck as helper.

The owner has also admitted in the written statement that the

accident had taken place on 01.05.2013 and there is also

disclosure in the manner of the accident the deceased faced. The

owner did not even dispute the liability for payment of

compensation but, however, on the premises of valid insurance of

the vehicle while the deceased was engaged, the owner claimed

compensation to be paid by the Insurance Company. To

substantiate their case, the claimants also examined the driver of

the vehicle who was accompanied with the deceased at the

relevant point of time. This man deposed as P.W.2. From the

perusal of the evidence deposed by P.W.2 being driver of the

vehicle, it appears that this man in categoric statement submitted

that he was driving the Mini Truck involved on the date of

accident. He also stated that while moving from Kendrapara to

Cuttack side and he parked the vehicle roadside and went to a

nearby hotel along with deceased to take tiffin. He was also

clearly stated that at the time of returning after taking tiffin, one

unknown vehicle came in high speed from Cuttack side and

dashed against Purusottam Mandal from his behind, as a result

the deceased sustained severe injuries on his person and being

picked up by the PCR Van. It took him to S.C.B. Medical College &

Hospital, Cuttack where the deceased died. The Insurance

Company even though got the scope of cross-examination,

looking to the cross-examination part, this Court finds the

Insurance Company failed to demolish any of the claim made by

the claimants or the driver even. There is absolutely no rebuttal

evidence in the matter of claim of no death on account of in

course and arising out of employment. Here, it appears, the

Insurance Company took support of medical documents and

other documents, as indicated hereinabove. This Court finds, the

Insurance Company strongly relied on Bed-Head Ticket. For the

opinion of this Court information on the person facing an accident

on a Bed-Head ticket cannot be conclusive proof but it is

ultimately the post mortem report having relevancy. From the

scan of the pleading and evidence of both sides, this Court finds

the claimants are able to establish a clear case of death in

course and arising out of engagement. It is at this stage of the

matter, on perusal and looking to Ext.J, the post mortem report,

this Court finds there is the following opinion:

"The above detailed external & internal injuries are antemortem in nature and are due to hard & blunt force trauma. Death is due to crania cerebral injuries sustained. Time since death as the time of autopsy is within about around 6 hrs."

6. Looking to the opinion of the Doctor conducting post

mortem, this Court finds the deceased has suffered to death for

internal as well as crania cerebral injuries. There is no opinion of

the Doctor poison being the cause of death of the deceased. This

Court, therefore, declines to entertain the claim of the Insurance

Company that there is death on account of taking poison being

corroborated by Bed-Head ticket.

7. It is at this Stage, this Court here taking into account

the judgment cited by the learned counsel for the Insurance

Company in the case of Malikarjuna G. Hiremath Vs. Branch

Manager, Oriental Insurance Co. Ltd. and Another, finds

there is establishment of a case of even having no casual