The High Court
Case Details
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. Oriental Insurance Company Ltd., Bhubaneswar …. Appellant(s) Mr. A. A. Khan, Advocate -versus- Banita Mallik and others …. Respondent(s)
Legal Reasoning
Mr. B. Mohanty, Advocate for Respondent Nos.1, 3, 5 & 5 CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 18.02.2025 Both the aforementioned appeals are directed against the Order No. 03. 1. 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 Page 1 of 9 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. 3. Heard learned counsel for the parties. 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 Page 2 of 9 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 Page 3 of 9 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. Page 4 of 9 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 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.” from 10.06.2015 7. Reading of the aforementioned observation makes it clear that the appellant-Insurance Company, who is impleaded as Page 5 of 9 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 Page 6 of 9 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 Page 7 of 9 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 Page 8 of 9 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 Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High court of orissa Date: 21-Feb-2025 14:00:22 Page 9 of 9