NEW INDIA ASSURANCE CO. LTD. v. BRAJA KISHORE SAHOO
1999-07-08
P.K.MISRA
body1999
DigiLaw.ai
JUDGMENT : P.K. Misra, J. - This appeal has been filed by the Insurance Company u/s 30 of the Workmen's Compensation Act (hereinafter referred to as the "Act"). 2. Claimant-respondents 1 and 2 are the parents of deceased Dillip Kumar Sahoo, who died in an automobile accident while working as a Helper in a truck bearing registration number ORJ- 5153. It has been found that the deceased was working as a helper in the truck and died due to injuries sustained in accident arising out of and in course of his employment. Though the claim had been made claiming Rs. 1,60,000/- the Workmen's Compensation Commissioner (hereinafter referred to as the "Commissioner") has directed for payment of Rs. 1,68,000/- as compensation. The aforesaid direction is under challenge at the instance of the Insurance Company. 3. In spite of notice, there is no appearance on behalf of claimant-respondents 1 and 2 or the owner-respondent No. 3. 4. The learned counsel for the appellant contended that the materials on record are not sufficient to hold that the accident arose out of and in course of employment and to come to the finding that the deceased was working under the owner. Keeping in view of the limited scope of interference in an appeal u/s 30 of the Act, I am unable to accept such contention, since the findings of the Commissioner are based on discussion of relevant materials on record. 5. The learned counsel for the appellant then contended that since the claim application was filed claiming Rs. 1,60,000/- the Commissioner should not have awarded any amount in excess of the claim amount. It is further submitted that the wage of the deceased calculated at the rate of Rs. 1,500/- appears to be excessive. This is again a submission on factual aspect which cannot be entertained. 6. The learned counsel for the appellant also contended that in the claim application it was stated that the age of the deceased was 21 and possibly on the basis of such age, claim had been made claiming Rs. 1,60,000/-. However, the Commissioner has granted Rs. 1,68,000/-calculating the age to be 20 years. This age has been taken on the basis of the post-mortem report. It is well settled that opinion given in post-mortem report regarding age may vary two years this side or that side.
1,60,000/-. However, the Commissioner has granted Rs. 1,68,000/-calculating the age to be 20 years. This age has been taken on the basis of the post-mortem report. It is well settled that opinion given in post-mortem report regarding age may vary two years this side or that side. Since in the claim application, it was stated that the age of the deceased was 21, the Commissioner should have calculated the age at 21 and not at 20. Taking the age of the deceased to be 21 and applying relevant factor, the compensation amount payable is Rs. 1,67,032.50 paise. However, as the claimants had claimed Rs. 1,60,000/-, it is directed that they are entitled to Rs. 1,60,000/-. 7. It appears that the awarded amount has been deposited in this Court by the Insurance Company on August 11, 1998 which has been invested in a fixed deposit, the claimant-respondents have not entered appearance in this Court, it is not possible to direct payment to them directly from this Court. It is, therefore, directed that sum of Rs. 1,60,000/- (One lakh and Sixty thousand) along with proportionate accrued interest from the fixed deposit amount shall be transmitted, to the Commissioner by this Court for payment to the claimant-respondents. The balance amount of Rs. 8,000/- (eight thousand) along with proportionate accrued interest shall be refunded by the registry of this Court to the Insurance Company. This exercise be completed within a period of three weeks today. Since the amount has been kept in a fixed deposit, direction regarding payment of interest is waived as proportionate interest from the fixed deposit is being given to the claimants. 8. The Miscellaneous Appeal is accordingly allowed in part. No costs. Final Result : Allowed