Orissa High Court
Manager vs Puspalata Sahoo And Others on 27 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.1035 of 2019
Manager, Magma HDI General .... Appellant
Insurance Company Limited
Mr.A.A.Khan, Advocate
-versus-
Puspalata Sahoo and others .... Respondents
Mr.S.K.Mohanty, Advocate
for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
27.10.2022
Order No.
2. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Khan, learned counsel for the Appellant and
Mr.Mohanty, learned counsel for Respondent No.1.
3. Present appeal by the Insurer is against the judgment
dated 27th November, 2019 of the Commissioner for Employee's
Compensation-Cum-Divisional Labour Commissioner, Cuttack,
in E.C.Case No.163-D/2015, wherein compensation to the tune of
Rs.7,36,680/- has been granted with effect from the date of filing
of the claim application on account of death of the deceased in
course of his employment as a driver of Scorpio Vehicle bearing
Registration No.OR-05-AV-5462.
4. Mr.Khan contends that the deceased, who was driving
the offending vehicle, was not having a valid D.L. on the date of
accident. The copy of D.L. shown to have been possessed by the
deceased is a fake D.L. Secondly, it is contended that the
deceased has been murdered and therefore, the case does not fall
under the purview of accidental death.
5. The facts of the case reveal that the deceased was a
driver of the offending Scorpio vehicle bearing Registration
No.OR-05-AV-5462. On the fateful day when he was returning
from Puri with unknown passengers, who were the culprits in the
guise of passengers, they killed the deceased and left the dead
body in a lonely place. The employment of the deceased under
the owner is not disputed and his murder while in employment as
driver of the vehicle is also not disputed. Law is well settled that
if the employee is murdered in connection with his employment
while discharging his duties, the same is covered within the
purview of Employees' Compensation Act to get compensation.
In the case of Smt.Rita Devi and Ors. Vs. New India Assurance
Co. Ltd.,(2000) 5 SCC 113, the Supreme Court has held:
"10. The question, therefore, is can a murder be an
accident in any given case? There is no doubt that murder, as it
is understood, in the common parlance is a felonious act where
death is caused with intent and the perpetrators of that act
normally have a motive against the victim for such killing. But
there are also instances where murder can be by accident on a
given set of facts. The difference between a murder which is
not an accident and a murder which is an accident, depends on
the proximity of the cause of such murder. In our opinion, if
the dominant intention of the Act of felony is to kill any
particular person then such killing is not an accidental murder
but is a murder simplicitor, while if the cause of murder or act
of murder was originally not intended and the same was
caused in furtherance of any other felonious act then such
murder is an accidental murder.
.. .. XX .. .. XX .. ..
14. Applying the principles laid down in the above cases
to the facts of the case in hand, we find that the deceased, a
driver of the auto rickshaw, was duty bound to have accepted
the demand of fare paying passengers to transport them to the
place of their destination. During the course of this duty, if the
passengers had decided to commit an act of felony of stealing
the auto rickshaw and in the course of achieving the said
object of stealing the auto rickshaw, they had to eliminate the
driver of the auto rickshaw then it cannot but be said that the
death so caused to the driver of the auto rickshaw was an
accidental murder. The stealing of the auto rickshaw was the
object of the felony and the murder that was caused in the said
process of stealing the auto rickshaw is only incidental to the
act of stealing of the auto rickshaw. Therefore, it has to be said
that on the facts and circumstances of this case the death of the
deceased (Dasarath Singh) was caused accidentally in the
process of committing the theft of the auto rickshaw. XX .. .."
6. Therefore, no such force remains in the contention of
Mr.Khan not to treat this as an accidental death.
7. So far as the submission regarding fake D.L. is
concerned, it is seen that the document under Ext.A has been
adduced from the side of the Insurer to support the evidence of
O.P.W.1, the Dy.Manager of the Insurance Company that the
deceased possessed a fake D.L. Nonetheless, no material is
brought on record to the effect, whether the owner had knowledge
of possession of fake D.L. by the deceased and he deliberately
allowed the deceased to drive the vehicle without testing his
competency. In absence of such materials and in absence of any
rebuttal evidence with regard to incompetency of the deceased to
drive the Scorpio vehicle, and applying the principles decided in
the case of National Insurance Co. Ltd. vrs. Swaran Singh and
others, (2004) 3 SCC 297 and Nirmala Kothari vrs. United
India Assurance Company Ltd., (2020) 4 SCC 49, the Insurer is
granted right of recovery of the compensation amount from the
owner.
8. A further challenge is advanced from the side of the
Insurer-Appellant questioning the quantum of compensation.
Mr.Khan contends that remuneration of the deceased as the driver
should be limited to the count of the minimum wages prevailing
on the date of accident. This submission of Mr.Khan has no force.
It is for the reason that the Tribunal has restricted the income of
the deceased at Rs.8,000/- keeping in view the prescription made
in Section 4 of the Employees' Compensation Act against the
claim of the applicant about remuneration of the deceased at
Rs.9,000/- per month plus Rs.50/- per day towards food
allowance.
9. Considering the date of accident and normal wages
paid to a driver, no such unusuality or excessiveness is seen in the
assessment of income made by the Tribunal. Therefore, the sum
of Rs.8000/- as taken by the Tribunal towards remuneration of
the deceased is confirmed. Further, no such illegality is seen in
the computation of the compensation amount which is determined
applying the age factor '184.17'. It needs to be mentioned here
that the age of the deceased as forty years is never disputed by the
Insurance Company.
10. The claimant-Respondent No.1 has filed cross-
objection for enhancement of the compensation amount and to
grant interest on the same. As per the claimant, she is entitled to
interest @12% per annum from the date of accident.
11. In the case of Pratap Narain Singh Deo vs. Srinivas
Sabata and another, AIR 1976 SC 222 and Kerala State
Electricity Board & another vs. Valsala K. & another, AIR 1999
SC 3502, the position has been settled that the interest is payable
on the compensation amount from the date of accident. This Court
also in the case of Senior Divisional Manager, National
Insurance Company Ltd. vs. Suresh Kumar Behera and another,
2019 (2) T.A.C. 461 (Ori.) have clarified the position upon an
elaborate discussion of the decisions of the Supreme Court. This
Court also in FAO No.535 of 2014, disposed of on 4th May, 2022
have reiterated the principle holding that the interest is payable on
the compensation amount from the date of accident. In view of
such authoritative pronouncements, the claimants are found
entitled to interest @12% per annum from the date of accident.
12. The appeal is thus disposed of with a direction to the
Insurer to pay the total compensation amount of Rs.7,36,680/-
along with interest @12% per annum from the date of accident,
i.e. 30th August, 2014, where-after the same shall be disbursed in
favour of the claimant by the Commissioner on such terms and
proportion to be suitably fixed.
13. At this stage, it is submitted that the entire
compensation amount has already been deposited before the
Commissioner in terms of its direction. Thus, the Insurer-
Appellant is directed to deposit the balance amount towards
interest before the Commissioner in terms of the direction of this
Court within a period of two months from today.
( B.P. Routray)
Judge
C.R.Biswal
