Orissa High Court
The Divisional Manager (D.O.-Ii) vs Arati Bag & Others on 3 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO NO. 60 OF 2021
The Divisional Manager (D.O.-II), .... Appellant
M/s National Insurance Company
Ltd. Mangalabag, Cuttack
Mr. G.P. Dutta, Advocate
-versus-
Arati Bag & Others .... Respondents
CORAM:
MR. JUSTICE D.DASH
ORDER
03.11.2021
Order No.
02. 1. This matter is taken up through hybrids arrangement
(virtual/ physical) mode.
2. The Appellant, the Insurer of the offending vehicle (bus)
bearing registration No.OD-02K-8757 by filing this Appeal, seeks
to challenging the judgment/award dated 4.11.2020, passed by the
Commissioner for Employee's Compensation-cum-Joint Labour
Commissioner, Cuttack, in E.C. Case No.381-D of 2017, awarding
a sum of Rs.10,15,932/- as compensation on account of death of
the driver namely Sujay @ Lakshmi Kanta Bag to be paid within
30 days from the date of this order for onward disbursement to the
Respondent Nos.1 to 3 (claimants) and on failure to pay interest @
12% per annum along with 50% penalty when it fell due as per
Sec-4A of the E.C Act.
// 2 //
3. Mr. G.P. Dutta, learned counsel for the Appellant (Insurer)
submits that since the offending bus at the time of the accident had
no valid permit as has been established from the side of the
Appellant through acceptable documentary evidence i.e. Ext. A,
the Commissioner has erred both on fact and law in saddling the
liability as to payment of the awarded compensation upon the
Appellant by completely ignoring the condition of the insurance
contract between the owner of the bus (Employer-Insured) and the
Insured. He further submits that the findings of the Commissioner
as to the monthly wage of the deceased is not based on just and
proper appreciation of evidence and for the purpose without
drawing an adverse inference for non-examination of the
Employer-Owner, the Commissioner having abruptly jumped to
the conclusion that the income of the deceased was Rs.8,000/- per
month, the same cannot be sustained. He submits that the monthly
income in the state of affair as it emanates from the evidence on
record at best could have been assessed Rs.5,200/-. It is further
submitted that the direction of the Commissioner to deposit the
awarded compensation amount within 30 days from the date of the
order for onward disbursement to the claimants and on failure to
pay interest @ 12% per annum is not sustainable when the interest
is not payable under the provision of the Act as also in terms of the
policy of Insurance when also no other contract to that effect has
been shown to have been entered into. He further submits that the
imposition of penalty with interest as has been ordered by the
Commissioner is untenable. He submits that the compensation as
awarded by the Commissioner for the death of the deceased is not
// 3 //
in consonance with the evidence on record, keeping in view the
statutory provision governing the field.
4. Learned counsel for the Respondent Nos. 1 to 3 submits all
in favour of the findings recorded by the Commissioner as to the
monthly wage of the deceased and on all other relevant aspects.
Therefore, according to him, the fixation of the liability regarding
payment of the compensation by the Appellant (Insurer) and also
the imposition of interest and penalty are not liable to be interfered
with.
5. Considering the submissions made and keeping in view the
findings of the Commissioner given in the impugned judgment
/award with regard to the quantum of compensation amount
awarded and the basis on which the same has been arrived at, I
feel, the interest of justice would be best served, if a consolidated
amount of Rs.7,25,000/- (Rupees seven Lakh and Twenty Five
Thousand) is awarded as compensation payable to the Claimants.
6. The Appellant-Insurer having already deposited the entire
amount in terms of impugned judgment/ award, the Commissioner,
for Employee's Compensation-cum-Joint Labour Commissioner,
Cuttack, is directed to disburse the consolidated compensation
amount of Rs.7,25,000/- (Rupees Seven Lakh and Twenty Five
Thousand) along with the proportionate accrued interest thereon to
the Claimants on proper identification. The balance amount along
with the proportionate accrued interest shall be refunded to the
Appellant-Insurer.
// 4 //
7. Keeping in view the submission of the learned counsel for
the Appellant (Insurer), it is however observed that the Appellant
(Insurer) after disbursement of the above awarded compensation
amount with the accrued interest as aforesaid to the Claimants, if
so advised may initiate appropriate proceeding as provided in law
against the Respondent No.4 (Insured) before the appropriate
forum as available in law for recovery of the compensation amount
with interest as received by the Respondent Nos. 1 to 3 (Claimants)
projecting the ground of violation of the condition of insurance
contract by the Respondent No.4 (Insured).
8. The FAO is accordingly disposed of.
Issue urgent certified copy as per rules.
(D. Dash),
Judge.
Aks
