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2009 DIGILAW 715 (CAL)

United India Insurance Co. Ltd. v. Lila Yadav

2009-09-07

B.Bhattacharya, Prasenjit Mandal

body2009
JUDGMENT: Per B. Bhattacharya and rasenjit Mondal, JJ. 1. THOUGH the original cross-objection is not in file the copy of the same having been annexed to the informal paper books, we propose to take up both the appeal and the cross-objection and the same be treated as on day's list. 2. THIS appeal is at the instance of the Insurance Company and is directed against the award dated 23rd August, 2007 passed by the Commissioner, Workmen's Compensation, 3rd Court, West Bengal, in Claim Case No. 341 of 2000 thereby awarding a sum of Rs. 2,03,850/- as compensation with a direction upon the Insurance Company to pay the said amount within two months from the date of the award with a condition that in default of making payment of such amount within the said period, the amount would carry interest at the rate of 12% per annum from the date of accident till the date of realization. Being dissatisfied, the Insurance Company has come up with the present appeal. 3. MR. Singh the learned Advocate appearing on behalf of the appellant, has taken a point which was not specifically raised either in the written statement or before the Trial Court. 4. ACCORDING to Mr. Singh, it will appear from Exhibit 8, the Driving Licence of the victim, that his name was Chanderjit Yadav having address of 34, B.T. Road and he has been described as the son of D. Yadav. Mr. Singh submits that it will appear, from the cause title of the present appeal that the owner of the vehicle was one Dilram Yadav and his address was also the same address of the victim, namely, 34, B.T. Road, as will appear from the address of the widow of the victim who is now the respondent No.1 before us. From the aforesaid fact, according to Mr. Singh, it is apparent that by alleging the owner of the victim to be the employer, a fictitious case has been filed. 5. MR. Mandal, the learned Advocate appearing on behalf of the claimant- respondent, has opposed the aforesaid contention and has submitted that such a pure question of fact which requires further adjudication should not be permitted to be raised for the first time in an appeal unless there is foundation in the pleading and also in the evidence. MR. 5. MR. Mandal, the learned Advocate appearing on behalf of the claimant- respondent, has opposed the aforesaid contention and has submitted that such a pure question of fact which requires further adjudication should not be permitted to be raised for the first time in an appeal unless there is foundation in the pleading and also in the evidence. MR. Mandal submits that no such suggestion was given to the claimant when evidence was given that the employer was the father of the victim. He, therefore, prays for dismissal of the appeal on the aforesaid preliminary ground. 6. APART from the aforesaid point Mr. Mandal points out that it will appear from panchnama, the exhibit 1, that in the selfsame accident, both the owner and the driver of the vehicle died and it will appear that the age of the owner was 30 years and the driver was 32 years old. By pointing out the aforesaid fact, Mr. Madal contends that it is preposterous to suggest that the alleged father was two years younger than the son. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the said specific point not having been taken and even there being no foundation of such fact in the pleading should not be permitted to be raised for the first time merely because in the Driving Licence, the name of the father of the victim has been described to be D. Yadav. The fact that the name of the victim was D. Yadav does not necessarily mean that the same is "Dilram Yadav". It is not uncommon that the driver stays in the house of the owner of the vehicle for the sake of convenience. Therefore, merely because the address of the driver as appearing in the Driving Licence is exactly the same of the owner of the vehicle, that fact does not necessarily follow that the driver was the son of the victim. Such specific question as raised by Mr. Singh ought to have been put to the witness for the claimant. 7. WE, thus, find no substance in the sole point taken by Mr. Singh on behalf of the appellant. 8. SO far the cross-objection is concerned, according to Mr. Such specific question as raised by Mr. Singh ought to have been put to the witness for the claimant. 7. WE, thus, find no substance in the sole point taken by Mr. Singh on behalf of the appellant. 8. SO far the cross-objection is concerned, according to Mr. Mandal, the learned Advocate appearing on behalf of the respondent-cross-objector the learned Commissioner erred in law in awarding interest only if the Insurance Company defaulted in making payment of the awarded sum within the time stipulated in the award. By referring to the provisions contained in Section 4-A (3) of the Workmen's Compensation Act. Mr. Mandal contends that it was the duty of the learned Commissioner to award interest from the date of expiry of the month from the date of accident till date of realization of the amount at the rate of 12% per annum irrespective of the fact whether there was default on the part of the Insurance Company in making payment within the time stipulated in the award. Mr. Singh appearing on behalf of the appellant fairly concedes the aforesaid position of law. 9. WE, therefore, dismiss the appeal preferred by the Insurance Company and allow the cross-objection filed by the claimant by modifying the award to this extent that in addition to the awarded sum, the claimant will also be entitled to get interest at the rate of 12% per annum from the date of expiry of one month from the date of accident, namely, 25th April, 2000, till realization of the amount. 10. WE are told that the amount directed to be paid by the award impugned has already been deposited. Therefore the Insurance Company is directed to pay the balance amount enhanced by this order within a month from today before the learned Commissioner. The cross-objection is, thus, disposed off. 11. IN view of dismissal of the appeal itself, the connected application being CAN 51 of 2008 has become infructuous and the same is disposed off accordingly. 12. XEROX certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.