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2003 DIGILAW 597 (JHR)

New India Assurance Company Ltd. v. Jaso Devi

2003-05-09

AMARESHWAR SAHAY, GURUSHARAN SHARMA

body2003
ORDER 1. A truck, bearing registration No. BHM 5437 was owned by Ram Kumar Saw and Narsingh Prasad Mehta was employed as driver thereon. 2. On 11.5.1997 coal was loaded on the truck for Varanasi and on the way at Itkhori More of Ranchi-Patna Road near Barhi, the driver stopped the truck and requested one Prayag Yadav to allow his nephew, Krishna Yadav to go with him on the truck as khalasi, as there was no khalasi on it and he had to go to Varanasi and for that he would be paid Rs. 50/- per day. Prayag Yadav allowed his nephew to go on the truck as khalast on daily wage of Rs. 50/-. 3. On 15.5-1997 in the early morning, the said truck was found abandoned at village Saraiya and the driver was not there. The dead body of Krishna Yadav was found lying in its cabin covered with a gam-cha. Even on search the driver was not found. 4. In this regard Barhi P.S. Case No. 63 of 1997 was registered and subsequently after investigation charge-sheet was submitted for the alleged offence under Section 302 of the Indian Penal Code against the driver. 5. In the meantime, mother of the deceased - Krishna Yadav filed W.C. Case No. 18 of 2001, which was decided by the Impugned judgment and award dated 30.12.2000. The Commissioner under the Workmens Compensation Act, 1923 (hereinafter to be referred to as the Act) held that keeping in view the occasional requirement, the deceased was employed as khalasi by driver of the truck and he died in course of his duty and, therefore, his mother was entitled to compensation under the Act. Assessing the age of the deceased to be 18 years and the minimum wages @ Rs. 1300/- per month, a total sum of Rs. 1,47,147.00 was assessed as compensation to be paid to his mother. 6. The truck was insured with the New India Insurance Company Limited at the relevant time and, therefore, the Commissioner under the Act directed the insurer to deposit the said amount within sixty days, failing which it was to pay interest @ 12% per annum. The Insurance Company has, therefore, filed the present appeal under Section 30 of the Act. 7. Earlier, on 8.1.2001, the appeal was dismissed in limine. The Insurance Company has, therefore, filed the present appeal under Section 30 of the Act. 7. Earlier, on 8.1.2001, the appeal was dismissed in limine. The Insurance Company preferred an appeal before the Supreme Court of India, which after grant of special leave to appeal was registered as Civil Appeal No. 5272 of 2002 and was allowed by order dated 26.8.2002. The order passed by this Court on 8.1.2002 was set aside and the matter was remanded to this Court for fresh disposal of the appeal in accordance with law. 8. Thereafter on 11.9.2002 the claimant-respondent No. 1 appeared and filed counter affidavit in this appeal, but no body was present on her behalf on 7.10.2002, when the Appeal was taken up for admission. However, it was admitted and appeal notices were issued to the respondents. Also pending hearing of the appeal, execution of the impugned award was stayed. Appeal notices were served on the respondents. 9. It is relevant to mention that before the Supreme Court, the claimant was present and after hearing her matter was remanded and thereafter she appeared in this appeal and also filed counter affidavit, but again at the time of hearing of the appeal on 7.5.2003, no body was present on behalf of the respondent No. 1, However, after hearing the counsel for the appellant judgment in appeal was reserved and today also when the judgment is being delivered, none is present on her behalf. 10. In the present case, it is not in dispute that the deceased Krishna Yadav was engaged as khalasi on the truck by its driver, while the truck with loaded coal was proceeding for its destination at, Varanashi. Nothing was brought on record in the claim case before the Commissioner as to how Krishna Yadav was found dead and/or the circumstances leading to such occurrence. 11. It is well settled that onus is on the person who wants to rely on the exceptions to prove that the employee was not a workman within the meaning of the Act. The conditions mentioned in the definition of workmen if not fulfilled, certainly takes out an employee out side the definition, provided in the nature of the exceptions. As such, it was for the employer to prove whether nature of the employment otherwise and he was not a workman within the meaning of the term as defined under the Act. 12. The conditions mentioned in the definition of workmen if not fulfilled, certainly takes out an employee out side the definition, provided in the nature of the exceptions. As such, it was for the employer to prove whether nature of the employment otherwise and he was not a workman within the meaning of the term as defined under the Act. 12. Here the admitted position was that deceased Krishna Yadav was engaged as khcdasi by the driver on way as it was necessitated by chance under the circumstances that the truck with full load of coal was going to Varanasi and there was no khalasi on the truck and accordingly engagement of a khalasi was urgently required thereon. Such employment, in- our opinion, can very well be defined as an engagement of a casual worker and such person cannot be said to be a workman within the meaning of the Act. 13. We are, therefore, of the view that the claimant, in the facts and circumstances of the case, was not entitled to any compensation under the Act. The provisions of the Act were not attracted in the present case. 14. In the result, this appeal is allowed, impugned judgment and award are set aside the claim application filed under the Act stands dismissed.