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1998 DIGILAW 300 (ORI)

DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD. v. AHALYA BAI (SMT)

1998-08-28

P.K.MISRA

body1998
JUDGMENT : P.K. Misra, J. - This appeal has been filed by the Insurer u/s 30 of the Workmen's Compensation Act (hereinafter referred to as the 'Act'). 2. The claimant-respondent No. 1 is the widow of late Ujjalla Sahoo. It was alleged in the claim petition that the aforesaid Ujjalla Sahoo while working as a workman under respondent No. 2 travelling in a truck bearing registration No. ORH 2343 as a head coolie of the truck died in an accident arising out of and in course of his employment. The owner and the driver of the truck arrayed as opposite parties 2 and 3 in the claim petition are respondents 2 and 3 in the present appeal. They had filed a joint written statement wherein it was admitted that the deceased who was a workman had died in an accident arising out of and in course of employment. It was further stated that the truck in question had been insured with the present appellant and, as such, compensation, if any, should be paid by the Insurance Company. The Insurance Company which had been arrayed as opposite party No. 1 in the claim petition pleaded that it had no knowledge about the status of the deceased as workman under respondent No. 2. It also disclaimed any knowledge about the alleged income of the deceased and it was further stated that the deceased had not died in accident arising out of and in course of employment. The Insurance Company in its written statement also called upon the owner of the vehicle to produce the Policy and other relevant documents for verification. 3. The Commissioner for Workmen's Compensation found that the deceased was working as a coolie in the truck of the present respondent No. 2 and had died in an accident arising out of and in course of employment. Assessing the age of the deceased at 32 years and the monthly income at Rs. 900/-, the Commissioner found that a sum of Rs. 23,386/-was payable and the Commissioner directed the Insurance Company to pay the aforesaid compensation as the truck had been insured. Hence, the present appeal. 4. Assessing the age of the deceased at 32 years and the monthly income at Rs. 900/-, the Commissioner found that a sum of Rs. 23,386/-was payable and the Commissioner directed the Insurance Company to pay the aforesaid compensation as the truck had been insured. Hence, the present appeal. 4. It has been contended on behalf of the appellant that the certified copy of the F.I.R. as well as the certified copy of the charge sheet clearly indicates that the passengers were being carried in the truck in violation of the provision contained in the Motor Vehicles Act and Rules and it is therefore, submitted that the Insurance Company has no liability in the matter in view of the violation of the provisions of the statute and conditions of the Policy. 5. On a perusal of the written statement filed by the Insurance Company, it appears that no specific plea had been taken by the Insurance Company raising the aforesaid contention. As the Insurance Company wants to avoid its liability on the ground that there has been violation of the provisions of the Act or conditions of the Policy, it is obligatory on the Insurance Company to raise a specific plea on the point. The Insurance Company apart from denying the allegations in the claim petition relating to the employment and salary of the deceased and denying about the accident has not specifically stated about the alleged violation of the provisions of the Act or in the Insurance Policy. Of course, the Insurance Company had called upon the owner to produce the policy and other documents had averred that it reserved its right to file additional written statement or amend the same, if necessary. But no such additional written statement had been filed. It is thus clear that no specific plea had been taken by the Insurance Company regarding the point now raised in the appeal. Law is well settled that an appeal u/s 30 of the Act can be filed only on the basis of substantial question of law. The question now raised by the Insurance Company for the first time in appeal is definitely not a pure question of law but a mixed question of fact and law and cannot be permitted to be raised for the first time in appeal. 6. The question now raised by the Insurance Company for the first time in appeal is definitely not a pure question of law but a mixed question of fact and law and cannot be permitted to be raised for the first time in appeal. 6. The learned counsel for the appellant has however submitted that the certified copy of the F.I.R. and the charge sheet clearly indicate that many persons had travelled in the vehicle as passengers and on the basis of document which had been filed by the claimant herself, it can be held that there was violation of the provisions of the Act and the Insurance Policy. Such contention of the appellant is not tenable. The F.I.R. appears to have been drawn by a police officer on the basis of his own information and the charge sheet filed after the investigation by the Investigating Officer is obviously based on the statements of persons examined by the police in course of investigation. The contents of the F.I.R. or the charge sheet cannot by themselves prove the correctness of the statements contained in those documents. Merely because the claimant has filed those documents, it cannot be laid down as a matter of law that the claimant is bound by the contents of those documents though the claimant may not be permitted to challenge the admissibility of such document at a later stage. Law is well settled that a person who files a document cannot raise objection regarding the admissibility of such document but such principle cannot be extended to hold that the person who files such document is bound by the contents thereof. Without examining the persons on whose statements charge sheet had been filed, merely from the copy of the charge sheet it cannot be held that in fact, the passengers were being carried in the truck. 7. Even assuming that the contents of the charge sheet were correct and the passengers had been carried in the truck, that would not affect the position relating to liability of the Insurance Company to pay the compensation vis-a-vis the claimants. It has been found by the Commissioner that the deceased was a workman under the owner of the truck and had died in an accident arising out of and in course of employment. These findings being essentially findings of fact cannot be assailed in appeal u/s 30 of the Act. It has been found by the Commissioner that the deceased was a workman under the owner of the truck and had died in an accident arising out of and in course of employment. These findings being essentially findings of fact cannot be assailed in appeal u/s 30 of the Act. Even assuming that there were other persons being carried in the truck as passengers, the said aspect had nothing to do with the death of the deceased in an accident arising out of and in course of employment. Violation of provisions of the Act or the conditions of the Policy, if any, related to other persons, namely the alleged passengers and not the workman who was being carried in the truck in course of his employment. If the question of compensation on account of death of any such passenger alleged travelling in the truck would have arisen, the question of violation of the provisions of the Act and Rules or the conditions of the Policy would have become relevant. Since in the present case the deceased was travelling in the truck as workman and died in the accident arising out of and in course of his employment, the owner of the truck and consequently the Insurer were liable to pay the compensation. For the aforesaid reason, I do not find any merit in this appeal which is accordingly dismissed. There will be no order to costs. Final Result : Dismissed