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2010 DIGILAW 127 (PNJ)

Oriental Insurance Company Limited v. Jhanju Devi

2010-01-07

DEV DARSHAN SUD

body2010
Judgment Dev Darshan Sud, J. 1. The Insurance Company has appealed against the judgment and award made by the commissioner under the Workmens Compensation Act, 1923, Chamba, District Chamba, H. P. 2. The petition was instituted by the widow, minor son and daughter and the father of the deceased Ashok kumar. The facts pleaded were that Ashok Kumar was employed as a workman by the respondent Shri s. P. Dhal. While the deceased was performing his duties on 22.12.2004, he reviewed fatal head injuries. 3. In reply the employer admits that the deceased was employed by him as labourer and he died on 22.12.2004 during the course of employment while he was working. He states that the salary of the deceased was Rs.1950/- per month. The petition was resisted by the Insurance Company which states that it is not maintainable; the claimants have no cause of action and locus standi to file the petition. The salary is stated to be not more than Rs.1800/- per month. The Insurance Company pleads that a false claim has been lodged against them. 4. The Commissioner relying upon the death certificate Ex. P-1, postmortem report Ex. P-2 and the statements of PW-1 Smt. Jhanjo Devi, who is the widow of the claimant and RW-1 Shri Gian Chand, manager of the Oriental Insurance Company Limited, holds that the claimant has been able to prove her case. The Insurance Company produced on record Ex. R-2, the Insurance Policy. RW-1, Shri Gian Chand, manager of the appellant Oriental Insurance Company Limited, stated in his evidence that only eight employees were insured and that the salary of each cannot be more than Rs.60/- per day. On the evidence on record, the Commissioner calculated the wages at Rs.2600/- per month and awarded a sum of rs.3,15,200/-, which consisted of Rs.2,87,781/-as principle amount and Rs.37,411/- as interest. 5. This appeal was admitted on the following questions of law:- "1. Whether the employer-employee relationship is not proved on record and in the absence of the proof of coverage of deceased under the policy, the insurer could not be saddled with liability of payment of compensation amount to the claimants? 2. Whether the impugned Award awarding amount of compensation to the claimants is in excess to the specific coverage of insurance taken by the employer? 3. What is the effect of under-insurance of the policy of indemnification purchased by the employer? 4. 2. Whether the impugned Award awarding amount of compensation to the claimants is in excess to the specific coverage of insurance taken by the employer? 3. What is the effect of under-insurance of the policy of indemnification purchased by the employer? 4. Whether the insurer is not liable to deposit the amount on account of interest on the compensation amount and whether the impugned order awarding interest on compensation amount to the claimants is against the provisions of the Workmens Compensation Act? question No.1: 6. This question requires to be answered against the Insurance Company. The evidence on record is sufficient to establish the relationship of employer and employee between the deceased and respondent no.1. This fact has been admitted by the respondent in his written statement as also in his evidence. No evidence has been led by the appellants on this issue. Moreover, this is a question of fact and not of law. Questions No.2, 3 and 4: 7. These questions are taken up together for decision. The Insurance Policy Ex. R-2 insures its employees. There is nothing on the record to show that the salary of each of them has to be Rs.60/- per day. Moreover, there is no evidence on the record to show that the employer had not insured his employees. As a matter of fact the pleadings before the Commissioner are extremely terse. Only two witnesses had appeared, one was claimant herself and the other was the Manager of the Insurance Company. The defence is that respondent No.1 employer had not insured its employees with the Company. The pleadings being extremely terse and brief, the pleas raised in this appeal have not been urged, pleaded or proved before the Tribunal. 8. It is trite to observe that a party pleading a case must at-least plead material particulars with clarity and indicate the particular grounds urged to non-suit the opposite side and lead evidence on its pleadings. It must not be left to conjectures and guess work of the Court to determine the points urged. Merely raising a question of law is not sufficient without first pleading and proving that before the Court of original trial. I do not find it a question of law as urged here having been pleaded or proved before the Commissioner. These questions are, therefore, answered against the appellant. 9. This appeal is accordingly dismissed. Merely raising a question of law is not sufficient without first pleading and proving that before the Court of original trial. I do not find it a question of law as urged here having been pleaded or proved before the Commissioner. These questions are, therefore, answered against the appellant. 9. This appeal is accordingly dismissed. There shall be no order as to costs.