Orissa High Court
Divisional Manager vs Kunjalata Pal And Others on 30 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.529 of 2017
Divisional Manager,
M/s.Oriental Insurance Co. Ltd. .... Appellant
Mr.A.A.Khan, Advocate
-versus-
Kunjalata Pal and others .... Respondents
Mr.K.C.Nayak, Advocate for Respondents No.1 to 3
Mr.P.K.Panda, Advocate for Respondent No.4
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
30.1.2023
Order No.
. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Khan, learned counsel for the Insurer-
Appellant and Mr.Nayak, learned Advocate for claimant-
Respondent Nos.1 to 3 as well as Mr.Panda, learned counsel for
Respondent No.4.
3. Present appeal by the Insurer is directed against
impugned judgment/award dated 21st August, 2017 passed by the
Commissioner for Employee's Compensation-Cum-Assistant
Labour Commissioner, Cuttack, in W.C.Case No.31-D/2007,
wherein compensation to the tune of Rs.3,27,705/- has been
granted on account of death of the deceased, namely, Prasant
Kumar Pal. The Tribunal by holding the deceased as an employee
under Respondent No.4 (as the helper of the truck bearing
Registration No.OR-04D-5988) has directed for payment of the
compensation amount.
4. Mr.Khan, learned counsel for the Insurer strenuously
submits that entire case of the claimants is false and fraudulent.
The deceased was never employed as a helper by Respondent
No.4 in respect of Truck bearing Registration No.OR-04D-5988.
The claimants are the mother, brother and sister of the deceased.
Their case is that the deceased while serving as helper in truck
bearing Registration No.OR-04-D-5988 died in an accident
involving an unknown vehicle. The F.I.R. was lodged on 8th
January, 2007 alleging that, while the deceased was going to
make a telephone call to the owner being in employment as
helper of the truck stated above, one unknown vehicle dashed
against him resulting the injuries to which the deceased
succumbed to in the hospital.
5. Three witnesses were examined from the side of the
claimants. P.W.1 is the mother of the deceased, P.W.2 is the
alleged driver of the truck and P.W.3 is the alleged Manager of
the truck. The owner examined himself as O.P.W.1. It is the seen
from the evidence of O.P.W.1 that he completely denied about
employment of the deceased as a helper in his truck and also
denied the employment of P.W.2 as its driver. The said O.P.W.1-
Owner has further denied P.W.3 as the Manager of the truck.
According to the O.P.W.1, neither the deceased was his employee
in respect of the truck nor P.W.2 was the driver and on the date of
accident, i.e. 28th December, 2006 the truck was engaged
otherwise and had never faced any break down. In this regard, he
swore an affidavit under Ext.A which has been filed by the
Insurance Company.
6. The Tribunal without dealing with the evidences of
O.P.W.1, mechanically came to the finding that the deceased was
employed as the helper of the truck under O.P.W.1 and in this
regard the Commissioner mentioned that the evidences of P.Ws.2
and 3 are supported by police investigation report that the
deceased was serving as a helper of the truck at the time of
accident. Accordingly, the Commissioner directed for payment of
compensation by the Insurer-Appellant.
7. Perusal of the copy of the charge-sheet as produced by
Mr.Khan in course of hearing reveals that the police has never
come to any such finding regarding employment of the deceased
as the helper of the truck. In the investigation report, the police
has submitted report about the accident and involvement of an
unknown vehicle in causing the accident, for which Mangalabag
P.S. U.D.Case No.1186 of 2006 was registered. Therefore, the
finding of the Tribunal that the police upon investigation has
concluded regarding employment of the deceased is not found
correct. The employment of the deceased, which is seriously
disputed by the Insurer and the owner, being the important
question to be decided for satisfaction of the claim application,
the evidence brought on record in this regard is required to be
reassessed. First of all, as seen from the evidence of O.P.W.1 as
well as the affidavit sworn by him under Ext.A, it is clearly
evident that the owner has completely denied about employment
of the deceased as the helper of the truck. The circumstances
noticed from the evidence adduced by the claimants are that
P.W.2 is stated to be a substitute driver engaged on the date of
accident only in respect of the truck and P.W.3 is the Manager of
the truck (but not the owner). On other hand, O.P.W.1 is the
admitted owner of the truck. Further, the story advanced by the
claimants is that the deceased after getting down from the truck
was dashed by an unknown vehicle resulting his death. So it is
seen that, the vehicle that caused the accident is unknown vehicle,
the driver is not the regular driver and P.W.3 is the alleged
Manager of the truck. O.P.W.1 has denied the status of the
deceased as a helper and also respective status of P.W.2 & 3 as
driver and manager. Admittedly, no such document has been filed
by the claimants in respect of employment of the deceased either
under O.P.W.1 or has a helper of the truck. Therefore, owing to
all such evidences adduced from both sides, the preponderance is
seen heavier in the evidence of O.P.W.1 to accept his contention.
Accordingly, it is held that the claimants have failed to establish
their case that the deceased was serving as a helper of the truck in
question on the date of accident and therefore, the Appellant is
not liable to pay the compensation amount.
8. Accordingly, the appeal is allowed and the impugned award
is set aside.
9. The amount already deposited by the Appellant before the
Commissioner be refunded to him with accrued interest on proper
application.
10. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
CRBiswal
