Orissa High Court
Ganeswar Muduli And Another vs Goutam Prusty And Another on 9 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.673 of 2005 and MACA No.470 of 2005
MACA No.673 of 2005
Ganeswar Muduli and another .... Appellants
Mr.S.K.Mohanty, Advocate
-versus-
Goutam Prusty and another .... Respondents
Mr.S.S.Rao, Advocate for Respondent No.2
AND
MACA No.470 of 2005
New India Assurance Co. Ltd. .... Appellant
Mr.S.S.Rao, Advocate
-versus-
Ganeswar Muduli and others .... Respondents
Mr.S.K.Mohanty, Advocate for Respondent Nos.1 & 2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
09.01.2023
Order No.
07. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Rao, learned counsel for the insurer and
Mr.Mohanty, learned counsel for the claimants.
3. Both the appeals are directed against same judgment
dated 4th February, 2005 passed by the learned 1st MACT,
Keonjhar, in M.A.C. Case No.472 of 1990, wherein
compensation to tune of Rs.43,471/- has been granted along with
interest from the date of filing of the claim application on account
of death of the deceased in the motor vehicular accident dated 9th
April,1990, are taken up together and disposed of by this common
order.
4. Mr.Rao submits that for the self-same accident, a claim
application in Workman Compensation case, i.e. W.C.Case
No.15K/1990 was preferred before the Court of the Labour
Commissioner under Workman Compensation Act at Keonjhar
by Smt.Sukuti Sethi and Sri Kailash Sethi claiming death of one
Ajay Sethi, who was working as the helper of the offending truck
bearing Registration No.ORY-4666. Therefore, the present claim
application at the instance of the claimants under Section 166 of
the M.V.Act, where the deceased is also claimed to be the helper
of the same offending truck, is not maintainable.
5. It is seen from the records that, W.C.Case
No.15K/1990 was preferred by Sukuti Sethi and Kailash Sethi for
death of Ajay Sethi, their son in the accident dated 9/10th April,
1990 when said deceased (Ajay Sethi) was working as helper of
the offending truck bearing Registration No.ORY-4666. The
Commissioner had directed for payment of compensation of
Rs.88,784/- in favour of said Sukuti Sethi and Kailash Sethi.
Against the order of the Workmen Commissioner, M.A.No.452 of
1992 was preferred by the present Insurer before this Court,
which was dismissed by order dated 14th September,1992.
Thereafter AHO No.42 of 1992 was preferred by the present
Insurer (New India Insurance Co. Ltd.) and this Court by order
dated 23rd June, 1995 dismissed the AHO confirming the findings
of the Commissioner that the deceased-Ajay Sethi was admittedly
in the employment as helper in the offending truck.
6. In the present claim application, it is the same
offending truck, i.e. ORY-4666 and it is the same accident took
place on 9th April 1990, i.e. due to capsization. According to the
claimants in the present claim application, namely, Ganeswar
Muduli and Maheswar Muduli, the present deceased, namely
Sidheswar Muduli was employed as the helper of the same
offending truck at the time of accident and died due to the injuries
sustained in the same accident. The claim application was
preferred before the 1st MACT, Keonjhar under Section 166 of
the M.V.Act in M.A.C.Case No.472 of 1990. The learned
Tribunal has directed for payment of compensation to the tune of
Rs.43,471/- along with interest @9% per annum to the claimants,
who are father and brother of the father of the deceased-
Sidheswar Muduli. The Tribunal accepted the contention of the
claimants that the deceased Sidheswar was working as the helper
in the offending truck bearing Registration No.ORY-4666, which
was capsized on 9th April, 1990.
7. As stated above, this Court while deposing of AHO
No.42 of 1992 has confirmed the findings of the Workmen
Compensation Court that the deceased Ajay Sethi was the helper
of the offending truck at the time of the accident. Admittedly, two
helpers cannot be employed simultaneously. It is also not the case
of the either party that Sidheswar Muduli (present deceased) and
Ajay Sethi (the deceased in the Workmen Compensation case)
were the two helpers simultaneously appointed in respect of the
offending truck at the time of accident. According to the
submission of Mr.Rao, the compensation amount as directed by
the Workmen Compensation Court in W.C.Case No.15K/1990
has already been disposed in favour of the claimants therein, who
are the parents of Ajay Sethi. Therefore, in such peculiar
situation, the present deceased, namely, Sidheswar Muduli cannot
be treated as the helper of the offending truck. Moreover, no
documentary proof has been adduced from the side of the
claimants to justify their stand that Sidheswar Muduli was
employed as the helper in the offending truck at the time of
accident and neither the owner of the offending truck nor any
other competent person was examined from the side of the owner
to justify the stand of the claimants. On the other hand, the owner
in the Workmen Compensation case has admitted about
employment of the other deceased Ajay Sethi as helper in the
offending vehicle at the time of accident. As such, this Court is
left with no other option than to hold Ajay Sethi as the helper of
the offending truck at the time of accident, as confirmed in AHO
No.42 of 1992 and not the present deceased. Consequently, the
appeal filed by the Insurer, i.e. M.A.C.A No.470 of 2005 is
allowed and the claimants namely, Ganeswar Muduli and
Maheswar Muduli are not found entitled for any compensation
amount. Thus, MACA No.673 of 2005 is dismissed.
8. The Appellant-Insurer i.e., New India Assurance Co.
Ltd. is exempted from the liability of payment of compensation
and the statutory deposit made in MACA No.470 of 2005 with
accrued interest thereon be refunded to him on proper application
and on production of proof of deposit of the award amount before
the learned Tribunal.
9. Copy of the order dated 23rd June, 1995 passed in AHO
No.42 of 1992 as produced by Mr.Rao is kept on record.
10. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
