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2000 DIGILAW 414 (ORI)

ORIENTAL INSURANCE CO. LTD. v. PURNA SHAW

2000-08-17

L.MOHAPATRA

body2000
JUDGMENT : L. Mohapatra, J. - This appeal has been filed against the award of the Asstt. Labour Commissioner-cum-Commissioner for Workmen's Compensation, Orissa, Bhubaneswar directing payment of Rs. 79,693/- as compensation to the claimant (respondent No. 1) and further directing the appellant to pay the compensation. 2. The claimant filed an application before the Court below claiming compensation of Rs. 1,50,000/- on account of death of deceased Sibpujan Shaw aged about 22 years in a motor vehicle accident which took place on 22.5.1993 on N.H. 5 near Remuna Golei at about 7'0 clock In the morning. The application discloses that the deceased was employed under respondent No. 2 Smt. Pabitar Khurana as a helper of the vehicle bearing registration No. NLA-5395 (tanker). The deceased received serious bodily injuries while he was going to bring kerosene oil, as per the order of the driver of the vehicle, being hit by a jeep. The deceased sustained severe injuries all over the body, as a result of which he succumbed to the injuries on 19.6.1993 in J.P. Hemani Memorial Hospital, Calcutta. Respondent No. 2 filed a written statement denying her liability on the ground that the deceased was not her employee and never worked as a helper in the said vehicle, and at the same time, took up a positive stand that the said vehicle was validly insured with the present appellant. The present appellant filed written statement denying the allegation made in the claim petition and denied its liability for payment of compensation. 3. Court below on consideration of the facts held that the accident took place out of and in course of employment of the deceased and that the deceased is an workman with the meaning of Workmen's Compensation Act. It was further held that the deceased was employed under the respondent No. 2 and, therefore, having come to conclusion that the deceased being a workman working as helper under respondent No. 2 died during and in course of employment, awarded compensation of Rs. 79,693/-. Since the vehicle was insured with the present appellant, liability was fixed on the appellant. 4. Mr. A.K. Mohanty, learned Counsel for the appellant submits that the evidence of P.Ws. 1 and 2 clearly indicate that they had not seen the deceased either going for purchasing kerosene or purchasing spare parts. 79,693/-. Since the vehicle was insured with the present appellant, liability was fixed on the appellant. 4. Mr. A.K. Mohanty, learned Counsel for the appellant submits that the evidence of P.Ws. 1 and 2 clearly indicate that they had not seen the deceased either going for purchasing kerosene or purchasing spare parts. He further submits that the evidence of witnesses examined on behalf of the claimant are full of contradictions and cannot be relied upon. On the other hand, evidence of O.P.W. 1 and O.P.W. 2 are consistent and there is no reason why the Commissioner ignored the same. It is also submitted by Mr. Mohanty that claim application was filed when the deceased was alive and there is no evidence of any doctor stating that the injuries sustained by the deceased are the cause of death of the deceased. There is no evidence to establish the nexus between the injuries and death. Relying upon a decision of this Court in M.A. No. 612/94, Oriental Insurance v. Saudamini Bank dispose of on 28.1.1998, Mr. Mohanty submits that the Insurance Company is not liable to pay the compensation. He further submits that in absence of any evidence to the fact that the deceased had been engaged by the respondent No. 2 as a helper in the said vehicle it cannot be said that he had been employed under respondent No. 2 and that the Insurance Company is liable to indemnify risk. 5. Learned Counsel for the respondent No. 1 has argued that this Court in appeal cannot reappreciate the evidence and disturb the findings of fact. He further submits that question as to whether son of respondent No. 1 was engaged as helper in the vehicle or not by the respondent No. 2 is a finding of fact and this Court in appeal cannot disturb the said finding of fact. He relied upon a decision of this Court reported in Divisional Manager, New India Assurance Co. Ltd. Vs. Babuli Perei and Another, 6. From the submission made by the learned Counsel for the parties, it is to be seen as to whether the deceased was engaged as a helper by the respondent No. 2 in the said vehicle. The Commissioner has categorically found that the deceased was engaged as helper under respondent No. 2. Ltd. Vs. Babuli Perei and Another, 6. From the submission made by the learned Counsel for the parties, it is to be seen as to whether the deceased was engaged as a helper by the respondent No. 2 in the said vehicle. The Commissioner has categorically found that the deceased was engaged as helper under respondent No. 2. I have looked into the evidence available on record and it appears that P.W. 1 has stated in his examination that the tanker met with an accident on 22.5.1993 at about 7 a.m and while going to purchase some spare parts near Remuna Golei one jeep dashed against the deceased in course of his employment. He has further stated that immediately after the accident he demanded payment of compensation before the owner but the owner refused to pay compensation. In cross-examination, he has stated that the deceased got employment through the driver and he was getting Rs. 1,000/- towards wages from respondent No. 2. Said witness further stated in the cross-examination that he had no personal knowledge as to how the accident took place and he heard about the accident from his son (deceased). P.W. 2 has stated that the deceased at the time of accident was going to bring kerosene for repairing work of the vehicle as instructed by the driver. P.W. 3 has stated that on the date of occurrence deceased was going to bring kerosene oil by walk by the order of the driver of the tanker for repairing work of the vehicle. He further stated in cross-examination that he had engaged the deceased in the vehicle in respondent No. 2 and the deceased had worked for about one and half years. 7. In view of such evidence available on record, it cannot be said that the deceased had not been employed as helper in the vehicle with the knowledge of respondent No. 2 and that he was getting remuneration for the service rendered. The only contradiction pointed out by Mr. Mohanty is that P.W. 1 says that the deceased had gone to purchase spare parts whereas the other witnesses say that the deceased was going to purchase kerosene. Admittedly, P.W. 1 is not witness to the occurrence and he heard about the accident from his deceased son. Therefore, such contradiction cannot be given so much weightage so as to discard the evidence of the claimant. Admittedly, P.W. 1 is not witness to the occurrence and he heard about the accident from his deceased son. Therefore, such contradiction cannot be given so much weightage so as to discard the evidence of the claimant. On the other hand, though attempt has been made on behalf of the respondent No. 2 to prove that the deceased was never employed as helper, the owner of the vehicle did not appear in the Court for being examined and the driver under whom the deceased was working as helper was also not examined on behalf of the respondent No. 2. Therefore, I do not find any reason to differ with the finding of the Court below that the deceased had been engaged as a helper in the vehicle in question and was getting remuneration for the same from respondent No. 2 and that while going to purchase kerosene for repair of the vehicle under the order of the driver of the vehicle he met with an accident and sustained injuries which ultimately resulted in death. 8. This Court in the decision reported in Vol. General Superintendent, Talcher Thermal Station Vs. Bijuli Naik, has laid down the principles to arrive at a conclusion as to whether the accident arose but of and in course of employment. The principles are as follows: (1) there must be a causal connection between the injury and the accident and the work done in the course of employment; (2) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to, or aggravated, the injury; (3) it is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just ceased to work; and (4) where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve and peculiar or exceptional danger resulting from the nature of the employment; or where the accident was the result of an added peril to which the workman, by his own conduct, exposed himself, which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable u/s 3 of the Act. From the said principles and considering the evidence available on record, there is no doubt in mind that the deceased died due to accident arising out of and in course of employment. Moreover, this finding of fact is also not available to be challenged in the appeal as per the decision of this Court reported in Divisional Manager, New India Assurance Co. Ltd. Vs. Babuli Perei and Another, . 9. So far as the liability of the Insurance Company is concerned, Mr. Mohanty relied upon a decision of this Court delivered in M.A. No. 612/94 (supra). It appears from the note of submission of the learned Counsel for the respondent No. 1 that the said judgment has been challenged under the patent of appeal by A.H.O. No. 11 of 1998 is pending disposal. Learned Counsel for the respondent No. 1 has relied upon several other decisions and they need not be referred to as there is no dispute about the proposition of law laid down in the said decision. 10. I, therefore, do not find any merit in the appeal and the same is dismissed.