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2009 DIGILAW 487 (CAL)

Mohini Roy v. Dinesh Gope

2009-07-09

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

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Judgment :- (1) The appeal is directed against the judgment and order dated 19th May,1997 passed by the Commissioner Workmens Compensation, West Bengal, North Bengal Region, Jalpaiguri in Case No. 75 of 1996. (2) By the aforesaid judgment and order under appeal, the learned Commissioner dismissed the claim case filed by the appellants herein upon holding that the claimants are not entitled to any relief whatsoever. While coming to the aforesaid conclusion, the learned Commissioner came to the specific findings that the deceased was not on duty and did not die in course of his employment as required by the statute. (3) Going through the judgment and order under appeal, we find that the learned Commissioner specifically recorded that the O.P. No. 1, the owner of the truck in question admitted that the deceased Khagen Roy was a Khalasi of the truck and the said truck is covered by insurance policy of the O.P. No. 2, namely, the Insurance Company. (4) In view of the specific admission of the owner of the truck in question, it cannot be disputed that the deceased was a Khalasi of the truck. The Insurance Co. also admitted that the truck in question is covered by insurance policy of the O.P. No. 2. (5) From the evidence on record, we find that the truck in question met with an accident, as a result whereof Khalasi, Khagen Roy ultimately died. Whether the truck in question was carrying the members of a club to witness the football match is immaterial. (6) It has not been submitted on behalf of the owner of the truck that the Khalasi took the truck to witness the football match without obtaining his permission. The owner of the truck, namely, the O.P. No. 1 never stated before the Commissioner that the truck had gone to the destination or was moving on the road on the fateful night without his consent or knowledge. The movement of the truck is regulated by the owner and in the present case obviously by the O.P. No. 1. (7) Therefore, on the fateful night when the truck was plying on the road and the deceased Khalasi was in the truck, it cannot be held that the said deceased Khalasi was not on duty. The movement of the truck is regulated by the owner and in the present case obviously by the O.P. No. 1. (7) Therefore, on the fateful night when the truck was plying on the road and the deceased Khalasi was in the truck, it cannot be held that the said deceased Khalasi was not on duty. Furthermore, since the truck in question had met with an accident on the road while proceeding towards the destination and the Khalasi ultimately died, it cannot be said that such death of the Khalasi was not in course of his employment. (8) Mr. Kundu, learned Counsel representing the Insurance Company submits that on investigation the Insurance Company found that the deceased Khagen Roy was not a Khalasi of any vehicle. (9) We, however, do not like to place any reliance on such investigation report of the Insurance Company specially when the owner of the vehicle in the written statement specifically admitted that the deceased Khagen Roy was employed as Khalasi in the truck in question. (10) Mr. Kundu further submits that the appellants herein could not produce relevant documents to show that the terms and conditions of the insurance policy were duly fulfilled. (11) The dependants of a poor Khalasi of a truck are not expected to produce relevant documents in relation to the vehicle in question as those documents, namely, road permit, driving licence, fit certificate and registration certificate, etc. in respect of the vehicle in question are not supposed to be available with them. (12) The learned Commissioner did not appreciate the true spirit for enactment of the Workmens Compensation Act while rejecting the claims of the appellants herein. (13) The Workmens Compensation Act, 1923 is a piece of social security and a welfare legislature. Its dominant purpose is to protect the workmen and, therefore, the provisions of the Act should not be interpreted too narrowly so as to debar the workmen from compensation, which the Parliament thought that they ought to have. The intention of the legislature was to make the employer an insurer of the workmen responsible against the loss caused by the injuries or death, which ought to have happened, while workman was engaged in his work. (14) In the present case, owner of the truck viz. The intention of the legislature was to make the employer an insurer of the workmen responsible against the loss caused by the injuries or death, which ought to have happened, while workman was engaged in his work. (14) In the present case, owner of the truck viz. O.P. No. 1 admitted in the written statement filed before the learned Commissioner that the deceased was a Khalasi in the truck in question and there is no dispute that the said truck met with an accident on the road when the said Khalasi was in the truck. (15) From the materials on record we are satisfied that the victim had sustained injuries on account of accident in course of employment and ultimately he breathed his last at hospital as a result of said injuries. (16) Therefore, the learned Commissioner, in our opinion, committed a grave error in holding that the deceased Khalasi was not on duty and did not die in course of his employment. (17) Since the truck in question is covered by insurance policy of the O.P. No. 2, the said O.P No. 2 is liable to pay compensation. It is true that the appellants herein could not produce any salary certificate although it has been specifically claimed before the Commissioner by the wife of the deceased that the said deceased used to get a salary of Rs. 1,500/- per month. By no stretch of imagination, it can be said that any unskilled person could be employed less than the aforesaid salary even if we go by the standard fixed under the Minimum Wages Act. (18) In the aforesaid circumstances, we hold that the victim was employed at a monthly salary of Rs. 1,500/-per month. Since the victim died at the age of 26 the multiplying factor would be Rs. 215.28p. as per schedule IV of the Workmens Compensation Act. Accordingly, the compensation under the Workmens Compensation Act in respect of the victim would be Rs. 1,500 / 2 x 215.28 = Rs. 1,61,406/-. (19) The appellants are entitled to receive funeral expenses to the tune of Rs. 1,000/-. 215.28p. as per schedule IV of the Workmens Compensation Act. Accordingly, the compensation under the Workmens Compensation Act in respect of the victim would be Rs. 1,500 / 2 x 215.28 = Rs. 1,61,406/-. (19) The appellants are entitled to receive funeral expenses to the tune of Rs. 1,000/-. The appellants are also entitled to receive interest in terms of Section 4A(3a) of the Compensation Act and, therefore, we award 12% simple interest in the present case which will be payable to the appellants within 1 month alter the death of the deceased, i.e. on and from 6th October, 1996 till the date of deposit of the amount in terms of this order. The opposite party No. 2 Insurance Company is directed to make payment of the aforesaid amount of compensation together with the interest within one month positively by issuing separate account payee cheques in favour of the appellants in equal shares through the learned Commissioner, Workmens Compensation, North Bengal Region, Jalpaiguri. (20) Since the appellant Nos. 3, 4 and 5 are still minor, the learned Commissioner will not disburse the amount payable to the said appellant Nos. 3, 4 and 5 and keep the amount in a Fixed Deposit Account of a Nationalized Bank till the said appellant Nos. 3, 4 and 5 attain majority. (21) Mr. Kundu, learned Advocate representing the Insurance company further submits that this Court should not award compensation in excess of the claimed amount. We are, however, unable to accept the aforesaid contention of the learned Advocate of the Insurance Company. Under the Workmans Compensation Act, the Commissioner has power to award compensation more than what is claimed, if the facts do warrant such an award. In the facts of the present case for awarding just and proper amount of compensation we have passed the award in excess of the amount claimed by the appellants. (22) Needless to mention that the appellants herein will receive the aforesaid amount after depositing the deficit Court Fees. (23) With the aforesaid observations and directions, we allow this appeal after setting aside the judgment and order passed by the learned Commissioner. (24) In the facts of the present case, there will be, however, no order as to costs.