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2012 DIGILAW 101 (PAT)

Oriental Insurance Company Ltd. v. Saryug Yadav

2012-01-17

SHAILESH KUMAR SINHA

body2012
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA) This appeal is directed against the order dated 10th of May 2004 passed by the Deputy Labour Commissioner-cum- Workmen Compensation Court, Gaya in Workmen Compensation Case No. 27 of 1998 whereby appellant – Insurance Company was directed to pay a sum of Rs. 2,27,490/- in favour of late Ajay Yadav (deceased) and further directed to deposit the aforesaid amount either by cheque or draft in favour of the Deputy Labour Commissioner-cum- Commissioner Compensation, Gaya within a period of 30 days failing which the aforesaid amount be recovered through a certificate proceeding with interest at the rate of 12 percent per annum with effect from the date of the accident till the date of payment of compensation amount. 2. Learned counsel for the appellant submits that the only controversy is with respect to the status of the deceased as to whether he was working as KHALASI on the truck in question, which met with the accident. It is further submitted that deceased was not a KHALASI and as such, no compensation could had been allowed to the claimant who happens to be the parents of the deceased. 3. Learned counsel for the respondent submits that having sufficient evidence; oral as well as documentary, it was duly established that the deceased Ajay Yadav was the KHALASI on the truck in question and as such, compensation was rightly allowed as per the impugned order. 4. The brief facts is that the Truck bearing No. PR-13H/7174 insured with the appellant- Insurance Company, had collided head with a Tanker bearing No. WV25/5515 near Amas Police Station on the G.T. Road in the district of Gaya. In the said accident, the deceased died in course of the treatment and the First Information Report was lodged by the Mahendra Paswan, Chowkidar vide Amas Police Station Case No. 26 of 1998. The deceased Ajay Yadav, who initially sustained injury, was shifted to Patna Medical College Hospital, Patna for treatment, however, in course of treatment, he died in the hospital at Patna. Sanjay Yadav, brother of the deceased gave his Fardbeyan recorded by the Pirbahore Police Station, Patna. The post-mortem was conducted at Patna after the death of Ajay Yadav who was aged about 17 years. The aforesaid compensation case has been filed by his parents. 5. Sanjay Yadav, brother of the deceased gave his Fardbeyan recorded by the Pirbahore Police Station, Patna. The post-mortem was conducted at Patna after the death of Ajay Yadav who was aged about 17 years. The aforesaid compensation case has been filed by his parents. 5. Learned counsel for the appellant submits that the authority under the Act while allowing the compensation, held that the deceased, Ajay Yadav was working as KHALASI on the truck in question merely on considering the evidence of claimant witness No. 1 namely, Sanjay Yadav, who happens to be the elder brother of the deceased. The said Sanjay Yadav in his evidence stated that deceased, Ajay Yadav was working as KHALASI on the truck in question whereas the said Sanjay Yadav in his Fardbeyan recorded by the Pirbahor Police Station stated that Ajay Yadav was not KHALASI in his truck, was rather stated that one Nakul Yadav was the KHALASI for which, no case was registered in Pirbahore Police Station. The other claimant witness no. 2, was Mahendra Paswan the Chowkidar, on whose Fardbeyan, the aforesaid police case vide Amas Police Station Case No. 26 of 1998 was registered. While supporting his Fardbeyan as stated, he stated that the deceased Ajay Yadav was the KHALASI on the truck in question. Learned authority, however, did not consider the surveyor report submitted on behalf of the Insurance correctly as such Surveyor Report dated 15.12.1998 would show that it was the Nakul Yadav who was the KHALASI and not the Ajay Yadav. It was also submitted that the insurance policy in question did not cover KHALASI although the said stand was not taken in the written statement. Learned counsel, accordingly, submits that the impugned order deserves to be set aside and the appeal may be allowed. 6. On the other hand, learned counsel appearing for the respondents submits that except the fact that whether the deceased was working as a KHALASI on the truck in question which met with the accident or not, no other facts are in dispute and so far the question whether the Ajay Yadav was KHALAISI or not, upon considering the evidence of the claimant witness No. 1, Sanjay Yadav as also the evidence of claimant witness No. 2, Mahendra Paswan, it is absolutely clear from their evidence that deceased was working as a KHALASI on the truck in question. There is no counter evidence with respect to the fact that deceased, Ajay Yadav was not the KHALASI and he was not receiving the remuneration as claimed by the claimant. Accordingly, claimant were entitled to compensation as claimed. It is further submitted that the evidence of Opposite Party No.1, who submitted the investigation report dated 15.12.1998 is not on the point as to whether deceased, Ajay Yadav was KHALASI or not. The said report merely narrated the Fardbeyan of the Mahendra Paswan, on whose Fardbeyan, Amas Police Station Case No. 26 of 1998 was registered. The said investigation report also mentioned about the Fardbeyan of the Sanjay Kumar who is said to have stated that one Nakul Yadav was the KHALASI, however, the said Fardbeyan was not on record on the contrary, author of the said Fardbeyan namely, Sanjay Yadav was examined who had deposed before the Deputy Labour Commissioner-cum-Workmen Compensation in the proceedings that Ajay Yadav was Khalasi. In the other words, learned counsel supports the impugned order and prays for dismissal of the appeal. 7. Considering the submissions of the respective parties as also the evidence of AW – 1, Sanjay Yadav and AW -2 Mahendra Paswan as also the Fardbeyan brought on the record on behalf of the claimant, I find that the Deputy Labour Commissioner-cum-Workmen Compensation, Gaya while allowing the compensation has considered all the relevant factors and evidence on record for coming to the conclusion that the deceased, Ajay Yadav was the KHALASI and was entitled to compensation. 8. At this Stage, learned counsel for the Insurance Company, Mr. Mukteshwar Prasad Singh informs that the compensation allowed was deposited before the Deputy Labour Commissioner-cum- Workmen Compensation, Gaya on 07.11.2006 and which was disbursed to the claimant on 11.04.2008. 9. In view of the discussions made above and considering the submissions of the parties as also the evidences brought on record, I do not find any error in the impugned order, the above appeal is accordingly, dismissed. No costs.