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2001 DIGILAW 948 (PAT)

Oriental Insurance Company Ltd. v. Nawlesh Singh

2001-10-08

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Miscellaneous appeal is directed against the order dated 31st January, 1997, passed by W.C.Commissioner in Claim Case No. C.W.C. 5 of 1996. The Oriental Insurance Company through its Manager is the appellant here. 2. The relevant facts for this Misc. appeal are that the respondent nos. 1 to 4 filed an application before the W.C.Commissioner for grant of compensation on account of death of Binod Kumar Singh, about 22 years during the course of his employment on the truck of respondent no,5, the owner. The W.C.Commissioner, on the basis of the evidence of three witnesses examined on behalf of applicant-respondents, fixed the compensation amount at Rs. 2,21,370.00. 3. The appellant has challenged this order on the ground inter alia, that in the original application, the applicant had claimed only Rs. 88,584.00 as an amount of compensation. They had also fixed the monthly wages of the deceased at Rs. 1,200/-. However, in an application dated 23.7.1996 they sought amendment in the original application so far the monthly wages of the deceased was concerned. They also sought an amendment in the amount of compensation. The copy of this petition was not supplied to the appellant before 8th November, 1996 and thereafter the appellant filed rejoinder and ho order was passed on the application of the claimant-respondents, still three witnesses were examined on behalf of applicant and on the basis of the evidence, the W.C.Commissioner, calculated the compensation amount on the basis of monthly wages of the deceased at Rs. 2200/. The evidence adduced was against the original pleading and moreover, the owner himself was neither examined nor any registered document etc. was produced in support of the monthly wages of the deceased at Rs. 2200/-. So the order of the W.C.Commissioner fixing the amount of compensation at Rs. 2,21,370.00 was illegal. 4. The order sheets of the claim-case show that the claimants had file an application on 23rd July 1996 seeking amendment in the original claim application regarding monthly wages of the deceased and regarding the compensation amount claimed on the ground that those were typing mistakes. The order sheet dated 6th May, 1996 refers to the aforesaid petition of the claimants. The subsequent order-sheets dated 14th September, 1995 and 8th October, 1996 do not show that the copy of this amended petition was supplied to the other side (O.Ps. The order sheet dated 6th May, 1996 refers to the aforesaid petition of the claimants. The subsequent order-sheets dated 14th September, 1995 and 8th October, 1996 do not show that the copy of this amended petition was supplied to the other side (O.Ps. of the claim case) nor any order on this prayer of amendment was passed. Still on 8th October, 1996, two witnesses were examined. The order-sheet dated 16th October, 1996 shows that another witness was examined on behalf of claimant. On 8th November, 1996 the order-sheet refers to the copy of the amendment petition being supplied to the appellant. The appellant had prayed for time to file rejoinder to this petition. The order sheet dated 27th November, 1996 shows that the appellant filed rejoinder. No Order was passed on the amendment petition. None of the subsequent order-sheets dated 10.12.1996, 18.12.1996 and 31.1.1997 shows that the amendment sought by the claimant was allowed or any order was passed thereon. Still the final order was passed by the W.C.Commissioner on 31.1.1997 itself. From the aforesaid order-sheets, it is quite obvious that the amendment sought by the claimant was neither allowed nor any order was passed. The three witnesses examined on behalf of claimants said that the monthly wages of the deceased was Rs. 2,200/-. This evidence was against the original pleading of the claimants and so unless amendment was allowed in the pleading, the evidence was inadmissible, the same being beyond the pleading. In his cross- examination, the appellant had challenged the evidence of the A.Ws. regarding the wages of the deceased. Moreover, apparently, and documentary evidence was produced. The wife of the deceased Bina Devi herself said in her cross- examination that she had no documentary proof regarding the monthly wages of her husband. She said that she was stating about the monthly wages of her husband as told by her husband. The owner of the truck was not examined. Of course, there was an affidavit on his behalf, but unless that affidavit is treated as evidence by the W.C.Commissioner and there was satisfactory explanation for non-examination of the owner, the affidavit itself could not be treated as a documentary evidence. The owner of the truck was not examined. Of course, there was an affidavit on his behalf, but unless that affidavit is treated as evidence by the W.C.Commissioner and there was satisfactory explanation for non-examination of the owner, the affidavit itself could not be treated as a documentary evidence. So the evidence regarding the monthly wages of the deceased, as the same transpired from the three witness examined in the lower court was not reliable nor it could be legitimately admitted, without there being any amendment in the original application. So the W.C.Commissioner had to calculate the compensation amount as per the provisions of Section 4(1) (a) of the Workmens Compensation Act, 1923 and as amended by the Amending Act, 1995, on the basis of factor given in the second column of Schedule-IV. On the monthly wages of the deceased at Rs. 2200/- the compensation amount calculated as per the 2nd column of the Schedule-lV would come to Rs. 1,32,822.00. So the compensation amount fixed by the W.C.Commissioner was apparently illegal and improper. 5. In the result, this appeal is partly allowed. The compensation amount fixed by the Tribunal is reduced to Rs. 1,32,822.00. Observation of the W.C.Commissioner regarding interest, shall remain intact.