) -------- The Divisional Manager, National Insurance Co. Ltd. … v. Basantibala Das and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.543 of 2020 the judgment dated 23rd October, 2019 passed by (From the Commissioner for Employee’s Compensation and Divisional Labour Commissioner, Balasore in E.C.Case No.28 of 2015) -------- The Divisional Manager, National Insurance Co. Ltd. …… Appellant Versus Basantibala Das and others ….… Respondents Advocate(s) appeared in this case:- For Appellant For Respondents : :
Legal Reasoning
Mr.P.K.Tripathy, Advocate Mr.P.K.Behera, Advocate (for Respondent No.1-3) Mr.P.K.Mishra, Advocate (for Respondent No.4) CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 23rd February, 2023 B.P. Routray,J. 1. Present appeal by the Insurer is directed against impugned judgment/award dated 23rd October, 2019 passed by the Commissioner for Employee’s Compensation and Divisional Labour Commissioner, FAO No.543 of 2020 Page 1 of 5 Balasore in E.C.Case No.28 of 2015, wherein compensation to the tune of Rs.6,60,816/- has been granted on account of death of the deceased in course of his employment as a driver of a Truck bearing Registration No. WB-33B-7715. 2. Heard Mr.Tripathy, learned counsel for the Insurer- Appellant and Mr.Behera, learned counsel for Claimants-Respondent Nos.1 to 3 as well as Mr.Mishra, learned counsel for Owner-Respondent No.4. 3. Mr.Tripathy, learned counsel for the Insurer-Appellant submits that the deceased was not an employee under the owner of the offending vehicle, since both are husband and wife in relation. He submits that Respondent No.4, the wife is the owner of the offending Truck, whereas the deceased is her husband. Therefore, the relationship of employer and employee does not exist and as such, the claimants are not entitled for any compensation under the Employees Compensation Act, 1923 (hereinafter stated as ‘the 1923 Act’). 4. The claim application has been filed by the children of deceased. At the time of accident the deceased was driving the vehicle and it was loaded with onions. As per the claimants, the deceased was employed as driver of the offending Truck for last three years under the owner-Respondent No.4, his wife. This is also the consistent evidence of the daughter (P.W.1) and the wife (O.P.W.1) of the deceased. No evidence has been adduced from the side of the Insurance Company. 5. Mr.Tripathy though does not contend anything disputing the accident or involvement of the offending vehicle in the accident, but FAO No.306 of 2022 Page 2 of 5 submits that the deceased was never an employee under his wife and in such case, the deceased cannot be accepted as a workman within the meaning of the provisions under the 1923 Act. In support of his contention, Mr.Tripathy relies on a decision of the Supreme Court in the Case of Gottumukkala Appala Narasimha Raju and others vrs. National Insurance Company Limited and another, (2008) 2 SCC (L&S) 662. In the said case, where a claim for compensation under the 1923 Act was filed for death of the deceased as the driver of the Tractor and against the owner, who was the wife of the deceased driver, the Supreme Court has observed as follows:- “22. In our considered opinion, it is wholly absurd to suggest that the husband would be a “workman” of his wife in absence of any specific contract. We have no doubt in our mind that only for the purpose of proceeding under the 1923 Act have the appellants concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a “workman” under her appears to be a far-fetched one. 23. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide. 24. No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also known (sic not) borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition FAO No.306 of 2022 Page 3 of 5 under the 1923 Act certainly would not lie. Only because Sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of the 1988 Act to the provisions of the 1923 Act save and except to the extent noticed hereinbefore.” 6. In the case at hand, it is seen that according to the claimants, the deceased was employed as the driver of the offending Truck for last three years prior to the accident and he was getting salary of Rs.8,000/- per month at the time of accident. The deceased was driving the Truck from Icchapur loaded with onions. O.P.W.1, the wife of the deceased and owner of the Truck also supported the fact of employment of the deceased as the driver of the Truck with remuneration of Rs.8,000/-. Thus, it is not that no material has been produced from the side of the claimants to reveal the employment of the deceased as a driver of the vehicle owned by his wife. Moreover, no evidence has been produced from the side of the Insurance Company to rebut such evidence brought on record from the side of the claimants or to deny the employment of the deceased as the driver of the Truck under his wife as the owner. Therefore, no material has been produced on record to reveal any collusion between the owner of the vehicle with the claimants to manage compensation. In absence of any rebuttal evidence to the specific evidence adduced by the claimants and in view of the categorical statements made by P.W.1 as well as O.P.W.1, it is held that relationship of employer and workman between owner and the deceased FAO No.306 of 2022 Page 4 of 5 is established on record. The finding of the Commissioner in this regard is confirmed. 7. The cross-appeal filed by the claimants is found barred by limitation, where the claimants have not preferred any petition to condone the limitation. As such, the cross-appeal filed by the claimants is not entertained. 8. 9.
Decision
In the result, the appeal is dismissed. Copies of evidence as produced in course of hearing are kept on record. Judge (B.P. Routray) C.R.Biswal, Secy. FAO No.306 of 2022 Page 5 of 5