Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 604 (CAL)

Sumitra Devi v. New India Assurance Co. Ltd.

2010-06-11

B.BHATTACHARYA, PRABHAT KUMAR DEY

body2010
JUDGMENT 1. THIS appeal is at the instance of claimant in a proceeding under Workmen's Compensation Act and is directed against an award dated 16th January, 2006 passed by the 1st Court of Commissioner for Workmen's Compensation, West Bengal in Claim Case No. 177 of 1999 thereby dismissing the said application. 2. BEING dissatisfied, the claimant, the mother of the alleged victim, has come up with the present appeal. According to the claim application, one Rakesh Prasad, a khalasi of the vehicle being No.WB-03-4174, who was an employee of the opposite party No. 1, was murdered on his way from Kolkata to Patna along with driver of the said vehicle. 3. ACCORDING to the claimant, she requested the opposite party No. 1 for making payment of compensation but was refused and hence the application was filed after condonation of delay in filing the application. 4. THE opposite party No. 1 filed written statement thereby denying the material allegations made in application and according to the opposite party No. 1, there was an accident arising out of and in course of employment. But according to him, the Insurance Company was liable to make compensation as the vehicle in question was insured with the opposite party No. 2, the New India Assurance Co. Ltd. The New India Assurance Co. Ltd. filed written statement thereby denying its liability to pay any compensation and it was further denied that there was even any accident or accidental death. 5. THE learned Commissioner on consideration of the materials on record came to the conclusion that in this case, neither any accident nor any death of the workman has been proved. It has been pointed out that on the allegation of the opposite party No. 1 himself, a complaint under Section 407 read with Section 120B of the Indian Penal Code was lodged on the basts of which charge sheet has already been submitted. 6. THE learned Commissioner on consideration of the materials on record, thus, disbelieved the alleged accident or consequent death. Being dissatisfied, the claimant has come up with the present appeal. 7. AFTER hearing Mr. Mondal, learned Advocate appearing on behalf of the appellant and Mr. Bhowmick, the learned Advocate appearing on behalf of the Insurance Company, we find that admittedly neither the truck in question is traceable till today nor has anybody given any evidence showing that the victim was killed. 7. AFTER hearing Mr. Mondal, learned Advocate appearing on behalf of the appellant and Mr. Bhowmick, the learned Advocate appearing on behalf of the Insurance Company, we find that admittedly neither the truck in question is traceable till today nor has anybody given any evidence showing that the victim was killed. All that has come up in evidence was that the victim was not traceable since the departure of the vehicle on 17th June, 1996 when the vehicle was proceeding from Kolkata to Patna with stock of medicines worth Rs. 9,57,307.50 p. 8. IT further appears from the record that on the complaint of the owner, a proceeding under Section 407 read with Section 120B of Indian Penal Code has been initiated against the driver and the alleged victim. In the case before us, neither any accident nor any death has been proved. In the absence of any evidence showing that there was any accident or any death, in our view, the learned Commissioner was quite justified in dismissing the claim. 9. IT appears that the proceeding was initiated within three years of the departure of the vehicle and thus, we do not find any substance in the contention of Mr. Mondal about presumption of death. Moreover, by virtue of presumption of death, the date of death cannot be presumed and therefore, it is not possible to presume that the death had occurred really in course of employment. 10. WE may in this connection profitably refer to the decision of the Supreme Court in the case of Oriental Insurance Company Ltd. v. Sorumai Gogoi and Ors., reported in 2008 AIR SCW page 1477, where in the similar circumstances the Supreme Court held that there was no question of drawing presumption under Section 108 of the Evidence Act for the purpose of grant of compensation under Workmen's Compensation Act. On consideration with the entire materials on record, we find that no substantial question of law is involved in this appeal and consequently, we dismiss this appeal. 11. IN view of dismissal of this appeal, the connected application has become infructuous and the same is disposed of accordingly. Urgent xerox certified copy of this order, if applied for, be handed over to the learned Advocates for the parties within one week from the date of making application upon compliance of all requisite formalities.