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2009 DIGILAW 416 (CAL)

Latika Das v. MD. Kayamul Haque

2009-06-15

ASHIM KUMAR BANERJEE, DEBASISH KAR GUPTA

body2009
Judgment :- (1) The unfortunate victim at the age of 23-24 years while working as Khalasi in the ill-fated truck succumbed to the injury caused due to accident. His mother being the appellant lodged a claim before the Commissioner under the Workmens Compensation Act, 1923 for appropriate compensation against the owner as well as the Insurance Company as the vehicle stood insured. Both of them filed written statement. The owner admitted that he was working as Khalasi. The owner also admitted that he died in course of employment. He was getting salary Rs. 1,850/-per month in addition Tiffin allowance Rs. 30/- per day. However, there was some confusion with regard to the exact quantum of salary. (2) The Insurance Company totally denied their liability to pay. The Insurance Company took a plea that the Khalasi was not covered under the policy of Insurance. The matter was heard by the Commissioner. The Commissioner considered the evidence of the matter. The Commissioner came to a conclusion that there was confusion with regard to the exact age of the victim. The age of the victim as claimed by the appellant was impossible if her age was considered as claimed by her. The Commissioner also highlighted the confusion raised by the owner in his written statement as well as deposition with regard to the exact salary being paid to the victim. The father of the victim was a fisherman. He did not come to depose. His income was also not made known to the Commissioner. The Commissioner observed that the appellant failed to prove that she was a dependent upon income of her son. She also failed to prove the monthly income of her son. The Commissioner also held that the Insurance policy was required to be considered which was not tendered in evidence. The Commissioner rejected the claim. Hence, this appeal by the appellant. (3) We have heard Mr. Banerjee, learned Counsel being assisted by Mr. Jayanta Banerjee, learned Counsel for the appellant and Mr. Drolia, learned Counsel appearing for the Insurance Company. The owner is not represented before us. (4) On perusal of the pleadings so appearing at the paper book including the deposition we find that the appellant specifically stated that she was dependent upon her son. Mr. Jayanta Banerjee, learned Counsel for the appellant and Mr. Drolia, learned Counsel appearing for the Insurance Company. The owner is not represented before us. (4) On perusal of the pleadings so appearing at the paper book including the deposition we find that the appellant specifically stated that she was dependent upon her son. Mr. Drolia however, has drawn our attention to the reply in cross-examination where she confessed that she earned her livelihood of her own, No detailed cross-examination was made on that score. The nature of earning was also not made known. (5) The plea that the appellant was earning her livelihood is without any basis. Section 2(d) of the said Act of 1923 has defined the phraseology "dependent". Such definition includes wholly or in part dependent on the earnings of the workman where parent is entitled to compensation. Nothing has come out in evidence to prove that she was earning sufficiently to maintain herself. One has to live and maintain himself/herself by any means, that does not mean that he/she is not required to be compensated for the death of his/her son who was maintaining himself/herself out of income even partly. (6) We, however, find some justification in the contention of Mr. Drolia with regard to the exact amount of income as there was some anomaly in the evidence. Mr. Banerjee however, in his usual fairness concedes that this Court may take into account the amount on the lower side as relied on by the Insurance Company before the Commissioner. Thus, the concession made by Mr. Banerjee leaves us with the sole question of the issue of payability as the Insurance Company has taken plea that the Policy of Insurance did not cover the risk with regard to Khalasi and as such no claim could be entertained. (7) We have perused the lower Court records. We find that a copy of the Insurance Policy was tendered in evidence. Mr. Banerjee contends that the original Policy of Insurance was seized by the police. Mr. Drolia however, contends that the subject document was Certificate of Insurance and not the Policy containing detailed conditions. We have perused the said document. We find that there had been limitation as to the use of the truck, inter alia, to the extent that it could not be used for carrying passengers. Mr. Drolia however, contends that the subject document was Certificate of Insurance and not the Policy containing detailed conditions. We have perused the said document. We find that there had been limitation as to the use of the truck, inter alia, to the extent that it could not be used for carrying passengers. It was further provided that such limitation and/or restriction would not be applicable In case of the employees (other than driver) not exceeding six in number. Khalasi was admittedly an employee of the owner. He was alone in the truck along with the driver. It was nobodys case that there had been persons more than six in number. Hence, the policy, in our view, did cover the subject risk and such plea is nagated. (8) Mr. Drolia has also drawn our attention to the issues framed by the Commissioner. He contends that the Commissioner should have dealt with each and every issue separately. He might be technically correct. We however, feel that the subject claim is generated from social welfare legislation. The incident occurred in 1994. If we remand this matter back to the Commissioner after fifteen years, it would be a travesty of justice caused to the mother of the ill-fated boy who died at his prime age. We are prompted to say so, as we find that the factum of the accident was duly proved. The factum that the boy was working under the owner was also proved. We have just now held that the Policy of Insurance did cover such risk. Hence, it would not be wise to remand the matter back to the Commissioner. We thus proceed to adjudicate the amount of compensation. (9) On the basis of the concession made by Mr. Banerjee we take the income of the victim as Rs. 2,000/- per month. He died at the age of 23-24 years. As per Schedule IV of the Workmens Compensation Act, 1923 treating his age as 24 years, the factor of 218.47 would be applicable. Hence, the compensation is calculated as below : Rs. 2,000/- / 2 - Rs. 1,000/- being 50% of his income. Then it should be Rs. 1,000/-X 218.47= 2,18,470/-. (10) The appellant would also be entitled to funeral expense to the extent of Rs. 1000/-. (11) Mr. Hence, the compensation is calculated as below : Rs. 2,000/- / 2 - Rs. 1,000/- being 50% of his income. Then it should be Rs. 1,000/-X 218.47= 2,18,470/-. (10) The appellant would also be entitled to funeral expense to the extent of Rs. 1000/-. (11) Mr. Banerjee has insisted that we should apply the provision of Section 4A of the said Act of 1923 to award interest @ 12% per annum. The said provision would be applicable in case of the owner. (12) We direct the Insurance Company to pay interest @ 12% per annum in case they do not pay the amount of compensation awarded by us within two months from the date of communication of this order. (13) We also direct the Insurance Company to make payment of the amount by Account Payee Cheque drawn in the name of the appellant to be sent at her recorded address directly. (14) The judgment and order impugned is set aside. (15) The appeal is disposed of without any order as to costs.