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2001 DIGILAW 313 (ORI)

ORIENTAL INSURANCE CO. LTD. v. KUSHA DALABEHERA

2001-07-23

BASUDEVA PANIGRAHI

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PANIGRAHI, J. ( 1 ) THIS appeal is directed against the award passed by Commissioner for Workmen's compensation-cum-Assistant Labour Commissioner, Angul, in w. C. Case No. 34 of 1997. ( 2 ) THE facts involved in this appeal are stated below. The claimant's son Bikram dalabehera was employed as a driver in golden Aqua Firm, Balasore, whose proprietor was one Swarup Kumar Das, present respondent No. 2. While said Bikram dalabehera was driving the vehicle bearing engine and chassis No. DU 66867, a jeep belonging to respondent No. 2, it met with an accident on 24. 6. 1997 near Basta at 12. 30 p. m. as it collided against another jeep bearing No. WB 34-A 7999 which was coming from the opposite direction, as a result of which said Bikram Dalabehera sustained severe bleeding injuries and was immediately shifted to Rupsa Primary Health Centre and thereafter to the s. C. B. Medical College and Hospital, where he died on 30. 6. 1997. The jeep in question was insured at the time of accident. The claimant, who is the father of said Bikram Dalabehera, filed an application claiming Rs. 2,50,000 as compensation. It was claimed in the application that the deceased was getting Rs. 2,500 besides daily allowance of Rs. 25 and was aged 22 years at the time of accident. ( 3 ) THE owner who was arrayed as the opposite party No. 1 before Commissioner filed his written statement whereby he admitted that the deceased was employed as a driver at the time of accident. It was also indicated that the vehicle was covered under a valid insurance policy cover note no. A/3631125. The insurance company, who was arrayed as opposite party No. 2 had disputed the entire case and also the driving licence of the deceased driver. ( 4 ) THE Commissioner after thorough examination of the case found that the deceased was having a valid licence at the time of death in the accident and was employed as a driver under respondent No. 2. He believed that the claimant was getting rs. 2,000 as salary per month and Rs. 20 per day towards fooding allowance. His age was assessed to be 22 years at the time of accident. Therefore, in the above situation he directed the appellant insurance company to pay Rs. 2,21,370 as compensation. He believed that the claimant was getting rs. 2,000 as salary per month and Rs. 20 per day towards fooding allowance. His age was assessed to be 22 years at the time of accident. Therefore, in the above situation he directed the appellant insurance company to pay Rs. 2,21,370 as compensation. ( 5 ) LEARNED counsel for the appellant raised an initial objection with regard to the jurisdiction of the Commissioner. He submitted that the accident took place near basta in the District of Balasore and the claim application was filed before the commissioner at Angul and, therefore, the commissioner did not have the jurisdiction to pass such an award. Learned advocate appearing for the claimant-respondent No. 1 while repelling the said contention has relied upon the judgment of this court in united India Insurance Co. Ltd. v. Muna khan, 2000 (1) OLR 422 , wherein it was held that the claim can be filed anywhere according to the convenience and suitability of the claimant. Furthermore, on a cursory glance at the impugned award, it is nowhere indicated that such a point was taken before the Commissioner. Therefore, it is too late to contend that the Commissioner at Angul did not have jurisdiction to take up the case. Accordingly, this submission of Mr. Mohanty, learned counsel for the appellant, is rejected. ( 6 ) IT is next contended by the learned counsel for the appellant that the claimant has not filed any document to establish that the deceased was getting Rs. 2,500 per month towards his wages at the time of accident, nor was it established that he was getting Rs. 25 per day towards food allowance. In the absence of such documents, the Commissioner should not have assessed the wage of the deceased at Rs. 2,000 per month. The claimant's son was engaged in a jeep by private owner. No salary certificate was issued. In 1997, it is not expected of any owner to have paid rs. 2,000 per month to a person particularly working as a driver in a jeep. Therefore, on a modest assessment, the monthly wage is fixed at Rs. 1,700 and calculated at that rate, compensation amount comes to around Rs. 1,88,000. Accordingly, I modify the award of the Commissioner by directing the insurance company to pay rs. 1,88,000. 2,000 per month to a person particularly working as a driver in a jeep. Therefore, on a modest assessment, the monthly wage is fixed at Rs. 1,700 and calculated at that rate, compensation amount comes to around Rs. 1,88,000. Accordingly, I modify the award of the Commissioner by directing the insurance company to pay rs. 1,88,000. It is also submitted that the entire awarded amount as directed by the commissioner has been deposited and the same has been invested. In that event, let the claimant be paid Rs. 1,88,000 along with proportionate accrued interest and the balance amount along with proportionate accrued interest be refunded to the insurance company within four weeks from today. With the above modification, the misc. appeal is allowed in part, but without any order as to costs. Appeal allowed.