Orissa High Court
Jamuna Devi And Others vs Smt. Sikha Shaw And Another on 23 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.606 of 2016
Jamuna Devi and others .... Appellants
Mr. S.K. Singh, Advocate
-versus-
Smt. Sikha Shaw and another .... Respondents
Mr. N.C. Mohanty, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
23.08.2022
Order No.
07. 1. Heard Mr. S.K. Singh, learned counsel for the Appellants-
claimants and Mr. N.C. Mohanty, learned counsel for Respondent
No.2-Insurance Company.
2. On the last occasion by order dated 27.7.2022 with regard to
the dispute about validity of the insurance policy, Respondent
No.2 was directed to file an affidavit. No such affidavit is filed till
date.
3. On the other hand, Mr. N.C. Mohanty, learned counsel for
Respondent No.2 - insurer submits upon instruction that the
offending vehicle was having a valid insurance policy on the date
of accident and his submission in this regard on the last occasion
was a mistake of fact.
4. Considering the submission of Mr. Mohanty, it is accepted that
the offending truck was having the valid insurance policy
covering the date of accident and its employees.
5. Present appeal by the claimants is directed against the
judgment and award dated 7.10.2016 passed in W.C. Case No.27
of 1994 by the Additional District Magistrate-cum-Commissioner
Workman's Compensation, Mayurbhanj wherein the learned
Commissioner has refused to grant any compensation on account
of death of the deceased on 19.7.1991 arising out of and in course
of his employment as the driver of the offending truck bearing
Registration No.WML-212.
6. Learned Commissioner has concluded that the employer-
employee relationship between Opposite Party No.1 and the
deceased was not established in absence of any document filed
with regard to the employment of the deceased in the truck.
7. Upon hearing both the parties and perusal of the impugned
award reveals that the owner-Opposite Party No.1 by coming to
contest the case has admitted about the employment of the
deceased as the driver of the said truck and his death arising out
of and in course of his employment as the driver. Despite such
admission made by the owner, and registration of the police case
regarding the accident and death of the deceased, the
Commissioner has failed to appreciate the same to conclude that
the employer-employee relationship between Opposite Party No.1
and the deceased could not be established. Such finding of the
Commissioner being found against the established materials is set
aside.
8. However, it is found from record that no evidence was adduced
from the side of the claimants. She even did not examine herself
to prove her contentions made in the claim application. Here
notice of this Court is drawn to order dated 17.8.2016 of the
Commissioner, wherein the Commissioner without production of
required document declined to examine the claimant present
before him. The Commissioner has observed that unless the
required document were produced by the claimants, the oral
evidence is not permissible. Such observation is not found correct
since production of further material in support of such statements
made in the oral evidence depends on the facts of the case and for
non-production of the documentary evidence, oral evidence
cannot be denied.
9. In the circumstances, it is felt appropriate to remand the matter
back to the Commissioner for fresh adjudication after giving
opportunity of adducing evidence to both the parties.
10. Thus in the result, the appeal is remanded back to the
Commissioner with a direction to adjudicate the matter afresh
after granting opportunity to adduce evidence to the claimants as
well as the insurer and the owner, if she wants to. The process of
adjudication shall be completed within a period of four months
from the date of production of certified copy of this order. The
parties present before this Court are directed to appear before the
Commissioner on 12th September, 2022 along with copy of the
present order.
11. With aforesaid observations and directions, the FAO is
disposed of.
12. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
