The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.273 of 2022 Manager (T.P. Hub), Oriental Insurance Co. Ltd. …. Appellant Mr. P.K. Mahali, Advocate -versus- Gobinda Maharana and others Respondents Mr. K.C. Nayak, Advocate for Respondents 1 to 5 Mr. D. Patnaik, Advocate for Respondent No.6 …. Order No. 10. CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 26.07.2024 1. Heard Mr. P.K. Mahali, learned counsel for the Appellant- Insurance Company, Mr. K.C. Nayak, learned counsel for Respondents 1 to 5-claimants and Mr. D. Patnaik, learned counsel for the Respondent No.6-owner. 2. Present appeal by the insurer is directed against the judgment and award dated 26.04.2022 passed in E.C. Case No.88-D/2014 by the Commissioner for Employee’s Compensation-cum-Joint Labour Commissioner, Cuttack, wherein compensation to the tune of Rs.13,98,002/- including interest has been granted to claimants-Respondents 1 to 5 on account of death of the deceased in course of and arising out of his employment as a helper in the Truck bearing Regd. No.OR-04-A-0522 belonging to Respondent No.6. 3. Mr. P.K. Mahali submits that, the claimants are not entitled for compensation under the E.C. Act. It is for the reason that, the deceased was moving in a Scooter in drunken condition and Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jul-2024 16:02:19 Page 1 of 4 caused the accident for his own negligence. Further, the deceased was never an employee under Respondent No.6 (owner of the Truck) and in fact he was working as a mechanic in a motor garage. 4. Perusal of the record reveals that, the insurer did not examine any witness on their behalf. The Police papers relied on by the claimants have also been relied on by the insurer only. 5. Coming to see the evidences adduced on behalf of the claimants, they have examined two witnesses, Viz. P.W.1 & 2 and relied on the Police papers including the final form, FIR and inquest report, etc. 6. It is submitted on behalf of the insurer that, P.W.1, the father of the deceased, was a witness to the inquest held by the Police and in the inquest report under Ext.A at Column No.9, he has stated that the deceased was going in a Scooter at the time of accident with the tractor and therefore, the story advanced by the claimants regarding death of the deceased while standing on the road is disproved. 7. I fail to agree with the submission of the Appellant. It is for the reason that, P.W.1 was not an eye-witness to the accident as he has admitted during his cross-examination and secondly, what he has allegedly stated at Column No.9 of the inquest report is never confronted to him during his cross-examination by the insurer. Therefore, such contention raised by the Appellant at this stage to dispute the death of the deceased involving in the accident while standing on the road is unsustainable. Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jul-2024 16:02:19 Page 2 of 4 8. The insurer has also disputed the employment of the deceased under Respondent No.6 as the helper of the Truck. But in this regard, no material has been produced by the insurer on record. In course of argument in the present appeal, a bunch of documents including the copy of medical treatment papers of the deceased have been produced by Mr. Mahali with a prayer to accept the same on record. I do not agree to accept such documents filed in Court today for the reason that the same cannot be taken on record as evidence in absence of appropriate petition filed to that effect. Moreover, those documents do not appear authentic, which are the photocopies of alleged documents only. So all such documents produced by Mr. Mahali in Court today are discarded. 9. P.W.2 has stated himself as an eye-witness to the occurrence. He has denied to all such statements by the insurer in his cross- examination regarding travel of the deceased in Scooter at the time of accident. Rather he has confirmed his statement made in the examination-in-chief to have seen the accident while standing along with the deceased on the side of the road at the time of accident. No reason is seen to brush-aside his evidence regarding death of the deceased in the accident with the tractor. What is submitted by Mr. Mahali that the Police papers speak the death of the deceased for his own fault while riding his Scooter are not acceptable on record for want of proof regarding contents of those documents. The insurer has failed to examine the informant or the Investigating Officer to substantiate their case regarding death of the deceased allegedly riding in a Scooter. Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jul-2024 16:02:19 Page 3 of 4 10. So far as employment, wages of the deceased are concerned, the owner has come up to file his written statement admitting the employment of the deceased as a helper in his favour and payment of wages at such rate. The insurer has never attempted to bring the owner to witness box to testify him or to dispute his admission regarding employment of the deceased. 11. In the result, upon analysis of entire evidence and materials brought on record with regard to claim of the applicants, I do not see any reason to differ from the conclusion of learned Commissioner regarding death of the deceased as the helper of the Truck in course of his employment. 12. So far as the quantum of compensation is concerned, no reason is seen to interfere with the same as the Commissioner has assessed it at Rs.6000/- per month in terms of the admission made by the owner and contended by the claimants. The applied age factor has never been disputed by the parties. Thus the quantum of compensation is confirmed. 13. The appeal is dismissed. However, the direction for payment of penalty and penal interest by the Commissioner is waived. 14. The documents and evidences produced by Mr. P.K. Mahali, learned counsel for the Appellant in course of hearing are kept in the file. 15. The LCR be sent back forthwith. Judge B.K. Barik ( B.P. Routray) Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Jul-2024 16:02:19 Page 4 of 4