Orissa High Court
Banita Mallik And Others vs Pramod Nayak And Another on 18 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.513 of 2023
Banita Mallik and others .... Appellant(s)
Mr. B. Mohanty, Advocate
-versus-
Pramod Nayak and another .... Respondent(s)
Mr. A. A. Khan, Advocate for R.2
FAO No.529 of 2023
Regional Manager, M/s. .... Appellant(s)
Oriental Insurance Company
Ltd., Bhubaneswar
Mr. A. A. Khan, Advocate
-versus-
Banita Mallik and others .... Respondent(s)
Mr. B. Mohanty, Advocate for Respondent Nos.1, 3, 5 & 5
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
18.02.2025
Order No.
03. 1. Both the aforementioned appeals are directed against the
judgment dated 27.07.2023 passed by the learned Commissioner for
Employees Compensation-cum-Joint Labour Commissioner,
Cuttack in E.C. Case No.00042/2021/CUTT. Both the appeals are
cross appeals. The FAO No.513 of 2023 has been filed by the
claimants seeking enhancement of the compensation amount
whereas FAO No.529 of 2023 has been filed by the Insurance
Company for setting aside the award on the ground that the award
has been filed ex-parte against the company. Both the appeals were
heard analogously and a common order has been passed.
2. Heard learned counsel for the parties.
3. For the convenience, the FAO No.529 of 2023 is taken as a
lead case and the parties in the said FAO have been referred in the
present matter. The respondent Nos. 1 to 5 has filed an application
under the provision of E.C. Act, 1923 claiming compensation to
the tune of Rs.8,00,000/- on account of death of one Kalia @
Kalandi Mallik in a vehicular accident caused in the course of the
employment. The respondent Nos.1 to 5 are the wife, father,
mother, daughter and son of the deceased Kalandi Mallik.
4. The brief facts devoid of unnecessary details in the present
case is that one Kalandi Mallik was employed as a helper by the
respondent No.6 (Pramod Nayak) in his truck bearing Registration
No.OR-04-7605. On 21.11.2015 at about 11.00 A.M., he was going
to Bajabati Stone Crusher for lading chips in the truck, on the way
near Nakpole Canal of Jaraka, the driver of the aforesaid truck
parked the vehicle in the road side. When Kalandi step down from
the said vehicle to attend the call of nature, he was knocked down
by an unknown truck, who is fled way from the spot. He sustained
critical injuries and the help of the local people, he was admitted to
Dharmasala CHC but when his condition is deteriorated, he was
referred to SCB Medical College, Cuttack. In the ambulance, when
he was shifted to the hospital, he succumbed to the injury and the
doctors of SCB Medical College, Cuttack declared him brought
dead. P.M. examination was subsequently conducted. In that regard,
Mangalabag P.S. Case No.1684 of 2015 has also registered.
5. In lieu of the aforementioned accidental death of Kalandi
Mallik in the course of his duty arising out of the employment, his
legal representatives namely the widow, minor children etc. filed
W.C. Case No.242 of 2015 before the A.L.C.-cum-W.C.
Commissioner, Jajpur on 26.12.2015.The said case was transferred
to learned Commissioner for Employees Compensation-cum-Joint
Labour Commissioner, Cuttack and was registered as E.C. Case
No.42 of 2021. When the matter was pending before the
Commissioner, Jajpur, the appellant-Insurance Company had
engaged one Mr. Ashok Kumar Das, Advocate to appear and
contest the matter. Even after transfer of the matter to the learned
Commissioner for Employees Compensation-cum-Joint Labour
Commissioner, Cuttack, the Insurance Company again engaged
another panel Advocate Mr. Ramani Ranjan Mohanty and in both
the occasions, the lawyers have entered their appearance and sought
time to file written statement. Subsequently the lawyer engaged by
the Insurance Company for reason exactly not known did not
appear before the Court. However, the other contestant respondents
have contested the claim and the claim was eventually partly
allowed in favour of respondent Nos.1 to 5. The learned
Commissioner for Employees Compensation-cum-Joint Labour
Commissioner, Cuttack has awarded compensation of
Rs.15,98,562/- in favour of the claimants. The compensation
amount was directed to be disbursed within thirty days to the
claimants, failing which, the Insurance Company was directed to
pay 50% penalty with interest @ 12% per annum under Section 4A
of the E.C. Act, 1923.
6. Learned counsel for the appellant-Insurance Company has
vehemently argued that this is a case for remand because an ex-
parte judgment without affording appropriate opportunity has been
passed. He contended that due to communication gap, the lawyer
engaged by the Insurance Company did not appear in the Court and
adduce appropriate evidence on record.
The Insurance Company has been proceeded ex-parte and
eventually ex-parte judgment has been passed. However, it is
apparent on record that the Insurance Company has not challenged
the interim order by which the Company was set ex-parte rather by
way of the present appeal, the ex-parte judgment has been assailed.
The learned Commissioner for Employees Compensation-cum-Joint
Labour Commissioner, Cuttack while proceeding to pass the ex-
parte judgment has inter alia observed as under:-
"On being notice served on the Opp. Parties both of
them appeared through their respective counsel and O.P.
No.1 contested the case by filing written statement and
after several opportunities given to the insurer, O.P. No.2
did not file the written statement, hence Set-Exparte. The
Opp. Party No.1 who is the employer of the deceased in
his written statement admitted the accident, accidental
death, employment and payment of wages and disputed
the age and called upon the applicant to prove the same
by producing or adducing evidences. Further the O.P.
No.1 denied to pay compensation and stated that as his
truck bearing No.OR-04-7605 is validly insured with O.P.
No.2 i.e. M/s. Oriental Insurance Co. Ltd., vide policy
No.345105/31/2016/1111 valid from 10.06.2015 to
09.06.2016 issued by CBO-2, Cuttack covering the date of
accident and risk of the deceased helper. The O.P. No.1
has also filed the copy of R.C. Book, Fitness Certificate,
Rout Chart, Permit, D.L. of the driver and Insurance
Policy particulars which were valid and effective on the
date of accident for which O.P. No.1 has claimed
indemnification of compensation of awarded amount if
any as would be passed by the virtue of the Insurance
Policy coverage."
7. Reading of the aforementioned observation makes it clear
that the appellant-Insurance Company, who is impleaded as
opposite party No.2 in the claim petition even after sufficient
getting opportunity have chosen not to appear before the
Commissioner. However, the opposite party No.1, the owner of the
vehicle has contested the proceeding. The learned Commissioner
for Employees Compensation-cum-Joint Labour Commissioner,
Cuttack framed four issues which are reproduced hereunder:-
"1) Whether the applicant was an employee as a helper
under the provisions of Employee's Compensation Act?
2) Whether the helper sustained injury arising out of and
in course of his Employment?
3) Whether the amount of compensation claimed is due
or any part thereof?
4) Whether the Opp. Parties are liable to pay such
compensation, if so, by whom payable?
Issue Nos.1 & 2 has been answered by the Commissioner
in affirmative. The learned Commissioner for Employees
Compensation-cum-Joint Labour Commissioner, Cuttack arrived at
a finding that the accidental death has taken place during the
employment of Kalandi Mallik, who was being paid Rs.10,000/- per
month as a salary by respondent No.6 excluding Rs.100/- per day
for fooding. By relying upon the certified copies of the police paper
filed in the claim petition, the Tribunal has arrived at a conclusion
that the Kalandi Mallik has died on 21.11.2015 in the road traffic
accident arising out of and in course of his employment. Similarly,
Issue No.3 has been answered in favour of the claimants on the
basis of the materials available on record. While answering Issue
No.4, the learned Commissioner for Employees Compensation-
cum-Joint Labour Commissioner, Cuttack has observed as under:-
"Issue No.4:- So far as the liability to pay compensation it is
well settled provision of law that the employer is always
liable to pay the compensation to the legal heirs/dependants
of the deceased employee. In the instance case the applicants
being the wife, mother, daughter and son of the deceased
employee are entitled to get compensation being the
dependants. But during pendency of this case, the father of
the deceased namely Sukadev Mallik has died on
08.06.2021, his name be deleted from the cause list. The
O.P. No.1 has claimed indemnification on the ground that
his truck bearing No.OR-04-7605 has having valid
documents with valid Insurance Policy coverage vide policy
No.345105/2016/1111 valid from 10.06.2015 to 09.06.2016
issued by O.P. No.2 M/s Oriental Insurance Co. ltd., CBO-2,
Link Road, Cuttack covering the date of accident and risk of
the deceased employee. The O.P. No.1 has also filed Xerox
Copy of RC Book, Fitness Certificate valid from 29.11.2014
to 28.11.2015, D.L. of driver Manas Ranjan Mallik vide D.L.
No.OR-0420120170507 valid till 21.07.2020 issued by
Chandikhole RTA authorized him to drive Transport vehicle.
The O.P. No.2 did not contest the case, Set Exparte. Hence,
the O.P. No.2 M/s. Oriental Insurance Co. Ltd. is held liable
to pay compensation as determined above."
8. Learned counsel for the parties have strenuously argued
the case in their favour by relying upon the evidence adduced by the
parties before the Commissioner.
9. I have gone through the entire evidence on record. In so far
as the grievance of the Insurance Company that it has not got
adequate opportunity to contest the claim is concerned, I am not in
agreement with the contention raised by the learned counsel for the
appellant-Insurance Company simply because of the reason that it is
admitted by the Insurance Company that they have engaged the
lawyer to contest the case. Except stating that due to
communication gap, the lawyer did not appear before the
Commissioner, no other ground has been taken. No detail has been
furnished in the entire appeal memo regarding the real reason of not
contesting the proceeding despite being represented by a counsel.
On merit as well, the appellant have urged various issues. I am not
inclined to delve upon those issues in detail while dealing with the
present appeals because the Commissioner has meticulously
evaluated the evidence placed before it and passed a detailed
judgment.
10. In so far appeal filed by the claimants are concerned, I am
also not agreeable with the contention raised by the appellants. The
award amount is just and proper and on the basis of the evidence on
record regarding the income of the deceased. Therefore, no
interference is called for in the appeal filed by the claimant is
concerned regarding the enhancement of the compensation. Hence,
the FAO No.513 of 2023 fails.
11. Regard being had to the contention raised by the Insurance
Company in its appeal, I am of the considered view that the penalty
imposed on the appellant-Insurance Company regarding 50%
compensation amount and interest on penalty may not be justified.
Hence, I modified the awarded compensation amount and the
appellant-Insurance Company is directed to pay Rs.15,98,562/-
(Rupees Fifteen Lakhs Ninety Eight Thousand Five Hundred Sixty
Two) only within a period of thirty days from the date of receipt of
this order. In the event of failure to pay the awarded compensation
amount to the claimants within one month, interest @ 12% shall be
liable to be paid by the Insurance Company to the claimants.
12. With this observation, both the FAOs are disposed of.
(S.S. Mishra)
Judge
Swarna
Location: High court of orissa
