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2012 DIGILAW 1244 (RAJ)

Sriram General Insurance Co. Ltd. v. Kartar Singh

2012-05-11

PREM SHANKER ASOPA

body2012
ASOPA, J.—By this appeal, the Non-claimant-Appellant-Insurance Co. has challenged the Award dated 6.1.2012 passed by the Workmen Compensation Commissioner, Jaipur in Claim Case No. WCC/F 204/2010 Kartar Singh and another vs. Ranbir Singh and others. 2. Briefly stated, the facts of the case are that the claimant-respondents No.1 and 2 (Kartar Singh and Smt.Gurdeep Kaur) filed a claim petition before the Workmen Compensation Commissioner, Jaipur under the provisions of the Workmen Compensation Act, 1923 (which has now been amended as The Employee's Compensation Act, 1923), against the Non-claimant-appellant-Insurance Co. and other non-claimants Ranbir Singh and Nayab Singh, claiming compensation amounting to Rs.8,61,550/- with interest and penalty, on account of the loss sustained due to the death of Gurdeep Singh. It was stated in the claim petition that the deceased Gurdeep Singh was working as Driver on Trailor No.PB-04-K-9690 which was owned by the Non-claimants No.1 and 2 Ranbir Singh and Nayab Singh and was insured with the Non-claimant-appellant-Insurance Co. On 17.6.2010, while Gurdeep Singh was taking the aforesaid Trailor to Bikaner, at about 6.15 a.m. near Shivdharon, Police Station Lunkaransar, an accident occurred with standing truck No.RJ-07-GA-6759 as a result of which Gurdeep Singh died. At the time of death, the age of the deceased was stated to be 32 years and further that he was getting monthly wages amounting to Rs.6,000/- plus daily allowance of Rs.100/-. The claimants therefore, prayed for compensation amounting to Rs.8,61,550/- with interest and penalty. 3. Despite service of the notices through registered post, the Non-claimants Ranbir Singh and Nayab Singh did not appear before the Commissioner, therefore, on 8.4.2011, order to proceed ex parte against them was passed. 4. The non-claimant-appellant (Insurance Company) submitted reply to the claim petition denying the averments therein. It was stated that the deceased died due to his own negligence and further, no notice u/s 10 of the Act of 1923 was given, as such, the Insurance Company could not be fastened with the liability to pay compensation on account of the death of Gurdeep Singh. 5. It was stated that the deceased died due to his own negligence and further, no notice u/s 10 of the Act of 1923 was given, as such, the Insurance Company could not be fastened with the liability to pay compensation on account of the death of Gurdeep Singh. 5. On the basis of the pleadings of the parties, following five Issues were framed: ^^1- vk;k e`rd] foi{kh la-1 o 2 ds ;gk¡ fnkad 17-6-2010 dks mlds okgu la[;k PB-04-K-9690 ij cgSfl;r pkyd fu;qä FkkA 2- vk;k e`rd dh foi{kh la-1 o 2 ds fu;kstu esa mlds funsZ'kkuqlkj ,oa fgrkFkZ dk;Z djrs gq;s e`R;q gqbZA 3- vk;k foi{kh chek dEiuh ds tokc nkos dk izkFkhZx.k ds izfrdj feyus ij D;k izHkko iM+sxkA 4- vk;k izkFkhZx.k] foi{khx.k ds izfrdj ysus ds gdnkj gS ;fn gk¡ rks fdlls o fdruk fdrukA 5- vuqrks"kA** 6. In support of the claim, the Claimants submitted the affidavit of father of the deceased and in documentary evidence, submitted the FIR, R.C., insurance policy, post mortem report, FR, site plan, notice u/s 133, Motor Vehicles Act, 1988, fitness, permit and driving licence. The Insurance Company cross examined the father of the claimants and has not produced any kind of evidence. 7. After hearing both the parties and considering the documents on record, the Commissioner decided Issue No.1 and 2 in favour of the plaintiff. Issue No.3 has also been decided in favour of the Claimants on the ground that considering the object of enacting the Act of 1923, keeping in view the welfare and social legislation, the non giving of notice u/s 10 of the Act of 1923 would not deprive the claimants from filing the claim petition. While deciding Issue No.3, the Commissioner has considered the facts mentioned in the affidavit wherein complete salary of the claimants has ben shown as Rs.6,000/- plus Rs.100/- as daily allowance, totalling to Rs.9,000/- per month. The Commissioner further considered that age of the deceased was 34 years on the basis of driving licence wherein his date of birth has been mentioned as 15.5.1976 and rejected all the objections raised by the Insurance Company. The Insurance Co. did not produce any evidence to controvert the averments of the claim petition as well as affidavit of the father of the deceased. Similarly, with regard to the employment of the deceased, as Driver, took into consideration his salary as Rs.9,000/-. The Insurance Co. did not produce any evidence to controvert the averments of the claim petition as well as affidavit of the father of the deceased. Similarly, with regard to the employment of the deceased, as Driver, took into consideration his salary as Rs.9,000/-. Issue No.4 has also been decided as per Sec. 4(1)(a) of the Act of 1923 according to which for computing the amount of compensation in cases where death results from injuries, an amount equal to fifty per cent of the monthly wages of the deceased employee is to be multiplied by the relevant factor or an amount of one lakh and twenty thousand rupees, whichever is more is to be computed. The Commissioner after taking into consideration the relevant factor 199.40 and the multiplier, has held the claimants entitled to get compensation amounting to Rs.7,97,600/- with simple interest at the rate of 12% from the date of death. For penalty, the Commissioner has directed for issuance of the separate notice to the Employer. 8. Submission of counsel for the appellant is that there is no evidence that the deceased was employed with the Non-applicants No.1 and 2 as a Driver. Further submission of counsel for the appellant is that Sec.10 of the Act of 1923 is mandatory which has not been complied with. 9. I have considered the record of the miscellaneous appeal and further considered submissions of the counsel for the parties. 10. On consideration of the same, I find that the deceased was in employment of non-claimant No.1 and 2 as rightly held by the Commissioner, as Driver and further, his income has been rightly assessed on the basis of the facts stated in the claim petition and the affidavit of the father of the deceased on which cross examination was made by the Insurance Co. Otherwise also, the driver being a skilled workman is at least entitled to get more than Rs.200/- per day wages and as per practice, he is also entitled for daily allowance which is approximately Rs.100/-. Otherwise also, the driver being a skilled workman is at least entitled to get more than Rs.200/- per day wages and as per practice, he is also entitled for daily allowance which is approximately Rs.100/-. As regards Section 10 is concerned, under Fifth proviso to Sec.10 of the Act of 1923, the Commissioner has to record his satisfaction that the failure so to give the notice was due to sufficient cause and further Fourth proviso to Sec.10 of the Act of 1923 provides that want of or any defect or irregularity in the notice shall not be a bar to the entertainment of the claim, therefore, the same is not mandatory. In this particular case, the Commissioner has recorded his satisfaction on the issue of sufficient cause for filing the claim without notice by considering the fact that the Act of 1923 is social welfare legislation, therefore, non giving of the notice under section 10 will not deprive the claimant from filing the claim. 11. The Commissioner has rightly passed the Award. No substantial question of law is involved in this appeal and the same is dismissed.