The Divisional Manager vs Geetarani Rout And Others
2022 Latest Caselaw 696 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                             F.A.O. No.268 of 2021

   (In the matter of an Appeal under Section 30 of the Employees'
   Compensation Act, 1923)

    The Divisional Manager, New India ....                       Appellant
    Assurance Co. Ltd., Badambadi,
    Cuttack.
                              -versus-
    Geetarani Rout and others          ....                Respondents

   Appeared in this case:-
         For Appellant                 :   Mr. V. Narasingh,
                                           Mr. S, Das &
                                           Ms. S. Devi

           For Respondent No.1         :   Mr. P.K. Mishra,

         For Respondent No.4           :   None

    CORAM:
    JUSTICE A.K. MOHAPATRA
                                 JUDGMENT

Date of Hearing : 19.01.2022 | Date of Delivery :27.01.2022

A.K. Mohapatra, J.

1. The present appeal has been preferred by the insurer under

Section 30 of the Employees' Compensation Act, 1923, assailing

the judgment and award dated 15.09.2021 passed by the

Commissioner for Employee's Compensation-cum-Joint Labour

Commissioner, Cuttack in E.C. Case No.356-D of 2015.

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2. Though the Appeal was listed for admission, on consent of

both the sides, the same is being taken up for final hearing and

disposal.

3. The factual backdrop of the case, in short, is that the

predecessor in interest of the claimant family, namely one Sahadev

Rout died due to an accident, which took place on 31.08.2015 near

Chhend, Rourkela and eventually the said Sahadev Rout, workman

succumbed to the injuries at S.C.B. Medical College and Hospital,

Cuttack. Since the incident has arisen out of and in course of his

employment, the members of the deceased family, such as, his wife

and children have filed a claim case under the provision of

Employees Compensation Act, 1923 before the Commissioner for

Employees Compensation-cum-Joint Labour Commissioner,

Cuttack claiming compensation to the tune of Rs.10,00,000/-.

4. It is alleged in the claim application that while the deceased

was working as a driver in Tata Ace bearing Registration No.OD-

05-3446 belonging to the respondent no.1, he met with an accident

on 31.08.2015. Initially the deceased was shifted to ISPAT General

Hospital and thereafter he was shifted to S.C.B. Medical College

and Hospital, Cuttack for treatment. During his treatment, he died at

S.C.B. Medical College and Hospital, Cuttack, as a result of which,

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an U.D. F.I.R. case was registered under the Malgodown Police

Station, Cuttack, bearing U.D.F.I.R. Case No.1293 of 2015.

Pursuant to such U.D. F.I.R., post-mortem examination of the dead

body was conducted.

5. In their claim application, the claimants have stated that the

deceased was getting Rs.10,000/- per month towards his wage and

that at the time of the accident, the deceased was aged about 36

years.

6. The Commissioner for Employees Compensation-cum-Joint

Labour Commissioner, Cuttack after taking evidence and hearing

the counsel for the parties decided the E.C. Case No.356-D of 2015

by judgment dated 15.09.2021, wherein learned trial court has

allowed the claim application of the Applicants in part on contest

against Respondent No.2 and directed the Present Appellant to

deposit the compensation amount of Rs.12,71,206/- before that

court within a period of thirty days from the date of order, failing

which, the Appellant shall be liable to pay 50% penalty along with

interest @12% on the awarded amount.

7. Challenging the impugned judgment and award passed by

the court below, the present Appellant-Insurance Company has

preferred this Appeal before this court. Apart from the other

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grounds taken in the Appeal Memo, the Appellant has taken a

ground challenging the fixation of income of the deceased and the

quantum of compensation determined by the Court below.

8. Heard Mr. V. Narasingh, learned counsel for the Appellant

and Mr. P.K. Mishra, learned counsel appearing for the Respondent

No.1. Perused the case records.

9. Mr.V.Narsingh, learned counsel appearing for the Appellant

submits that the court below has committed an illegality by passing

the impugned award and thereby saddling the entire liability on the

Insurer of the offending vehicle. He further submits that in the

absence of any documentary evidence relating to wage of the

deceased, the finding arrived at by the court below in that regard are

based on guess work and on surmises and conjecturers and as such

the final award has been passed without following the due

procedure of law.

10. It is further submitted by the learned counsel for the

Appellant that the court below has committed a gross illegality by

not considering the notification of the Labour and Employment

Department, Govt. of Odisha with regard to the Minimum Wage of

a labourer although the same is a statutory document issued under

the Minimum Wages Act. Further the fixation of the wages of the

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deceased at the time of his accidental death is not in accordance

with aforesaid notification issued under the Minimum Wage Act,

inasmuch as, fixing the quantum of wage of the deceased workman

at Rs.8,000/- per month is not in conformity with the Notification as

the same provides monthly wages @ Rs.6,600/- per annum (i.e. @

Rs.220/- per day for a semi-skilled labourer). Therefore, the entire

basis of the calculation of the wages of the deceased is improper

and the same is on the higher side and as such the quantum of

compensation finally arrived at by the learned court below is

unsustainable in law.

11. Mr.P.K. Mishra, learned counsel appearing for the

Claimant-Respondent No.1 does not dispute the aforesaid

Notification of the Government of Odisha by the Labour and

Employment Department. He further submits that the learned court

below has not committed any illegality by granting the

compensation as has been given under the impugned award. He also

submits that it is difficult to produce evidence with regard to

income of the deceased as he was working as a driver in a Tata Ace

van on being employed by a private employer. He further contends

that the income would be more than what has been assessed by the

learned court below.

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12. Having heard the learned counsel for the parties and upon

perusal of the records, this Court is of the considered view that the

quantum of wages at the rate of Rs.8,000/- per month by the court

below appears to be not based on any evidence on record and not in

conformity with the aforesaid Notification of the Govt. However in

absence of any specific material to establish the income of the

deceased, the courts are duty bound to rely upon the statutorily

fixed wages/salary/income like the notification issued by the

Government notifying the minimum wages for a semi-skilled

workers. Further, this has been an accepted practice by the courts

dealing in such types of matters. Therefore, this Court is also

inclined to accept the notification of the government with regard to

minimum wage payable to a semi-skilled worker. Having accepted

the aforesaid facts, this Court is of the view that the order of the

court below is erroneous to that extent and the same needs to be

modified.

13. In such view of the matter, this court is inclined to allow the

appeal partly and further directs that the judgment and award dated

15.09.2021 passed in E.C. Case No.356-D of 2015 is modified to

the extent that the earning of the deceased be calculated by taking

his income to be Rs.6,600/- per month (as per the statutory

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Notification) and accordingly the penalty and interest as levied in

the impugned award are set aside. The Appellant is directed to pay

a consolidated sum of Rs.6,50,000/- (Rupees Six lakhs Fifty

thousand) to the claimants with proportionate accrued interest from

out of the awarded amount deposited in the court below. The

balance amount deposited in the court below along with

proportionate accrued interest thereon shall be returned to the

Appellant-Insurance Company.

14. With the aforesaid observation, the appeal is partly allowed.

However, there shall be no order as to cost.

15. As the restrictions due to resurgence of COVID -19

situation are continuing, learned counsel for the parties may utilize

a print out of the order available in the High Court's website, at par

with certified copy, subject to attestation by the concerned

Advocate, in the manner prescribed vide Court's Notice No.4587,

dated 25th March, 2020, modified by Court's Notice No.4798, dated

15th April, 2021, and Court's Office Order circulated vide Memo

Nos.514 and 515 dated 7th January, 2022.

(A.K. Mohapatra ) Judge U.K. Sahoo, PA-cum-Secy.