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2013 DIGILAW 3 (TRI)

Rina Laskar v. Rabindra Chandra Das

2013-04-11

S.C.DAS

body2013
JUDGMENT : S.C. Das, J. 1. This appeal under Section 30 of the Workmen's Compensation Act, 1923, was admitted on 26.07.2004 for hearing on the following substantial question of law: Whether the finding recorded by the learned Commissioner, Workmen's Compensation to the effect that the monthly income was Rs. 1500/- which formed the basis of the determination of compensation paid is based on any evidence? Heard learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. B. Debnath for the appellants. Nobody appeared for the respondents to argue the case. 2. Smti. Rina Laskar, Shri Sonai Laskar (minor) and Smti. Bakul Laskar, being the wife, minor son and mother respectively of the deceased, Pradip Laskar, presented an application before the Commissioner, Workmen's Compensation, West Tripura, Agartala (District Judge), claiming award of compensation for the death of Pradip Laskar, a workman, died due to an accident arising out of and in the course of his employment. The claimant-petitioners, inter alia, stated that respondent No. 1, Rabindra Chandra Das, owner of Jeep Vehicle No. TRT 2033, employed Pradip Laskar as assistant of the vehicle at a monthly wages of Rs. 2,050/- (rupees two thousand and fifty) and on 12.05.2000, at about 9.00 am while the vehicle was on way to Takarjala, extremists, ambushed on the roadside, indiscriminately fired on the vehicle and, as a result, Pradip Laskar received bullet injury and he was declared dead when was taken to Takarjala Hospital. 2.1. The claimant-petitioners alleged that deceased, Pradip Laskar was aged about 26 (twenty six) years on the date of accident and he was paid wages at the rate of Rs. 2,050/-per month by respondent No. 1 and, since he died due to the accident arising out of and in the course of his employment, they claimed just and adequate compensation before the Tribunal. 2.2. Respondent No. 1, the owner of the vehicle, admitted the accident and also admitted employment of the deceased as a temporary assistant in his vehicle but denied the fact that the deceased was paid Rs. 2,050/- as wages per month. It is, further, stated by respondent No. 1 that the vehicle was insured with the New India Assurance Company Ltd. covering the risk on the date of accident and so, liability, if any, should be borne by the Insurance Company. 2.3. 2,050/- as wages per month. It is, further, stated by respondent No. 1 that the vehicle was insured with the New India Assurance Company Ltd. covering the risk on the date of accident and so, liability, if any, should be borne by the Insurance Company. 2.3. Respondent No. 2, the New India Assurance Company Ltd., also contested the case by filing written statement, inter alia, stating that the deceased died because of firing by the extremists and there was no accident of motor vehicle and, so, the claim of compensation under the Workmen's Compensation Act was not maintainable. Respondent No. 2, however, did not deny the insurance of the vehicle. 2.4. Considering the pleadings of the parties, the Commissioner, Workmen Compensation formulated the following issues for decision: 1. Was deceased Pradip Laskar, a workman under O.P. No. 1 on the date of alleged accident on 12.05.2000 as defined in Workmen's Compensation Act? 2. Whether Pradip Laskar aged about 26 years succumbed to his bullet injuries from the extremist gun fire on 12-5001 at Brojendra Colony, 16 K.M. North-West from Takarjala P.S. On Agartala Gabordi Road out of and in course of his employment under O.P. No. 1 as Assistant of vehicle No. TRT-2033 (Jeep)? 3. Is the claimant-petitioners are entitled to get any compensation under Workmen's Compensation Act? If so, what should be the quantum of compensation and who is liable to pay it? 2.5. In course of trial, the claimant-petitioner No. 3, Bakul Rani Laskar, examined herself as PW1 and respondent No. 1, Rabindra Chandra Das, examined himself as OPW No. 1. 2.6. The Tribunal decided all the issues in favour of the claimant-petitioners and awarded a compensation of Rs. 1,61,460/- (rupees one lakh sixty one thousand four hundred sixty) with 12% interest thereon from the date of accident i.e. 12.05.2000. 2.7. Being dissatisfied with the quantum of awarded compensation, made by the Tribunal, the appellants filed the present appeal. 3. It is argued by learned senior counsel, Mr. Deb that in the claim petition the claimant-petitioners clearly stipulated monthly wages of the deceased as Rs. 2,050/-. In support of the pleadings, PW1, the claimant-petitioner No. 3, in her evidence, clearly stated that her son, Pradip used to get a monthly wages of Rs. 2,050/-. 3. It is argued by learned senior counsel, Mr. Deb that in the claim petition the claimant-petitioners clearly stipulated monthly wages of the deceased as Rs. 2,050/-. In support of the pleadings, PW1, the claimant-petitioner No. 3, in her evidence, clearly stated that her son, Pradip used to get a monthly wages of Rs. 2,050/-. In support of her contention, she also proved a certified issued by respondent No. 1, Rabindra Chandra Das, the owner of the vehicle, which has been marked as Exbt.2. 3.1 It is contended by Mr. Deb, learned senior counsel, that during cross-examination of PW1, on behalf of OP No. 1, no challenge was made regarding Exbt.2. He further contended that in cross-examination of OPW No. 1, i.e. respondent No. 1, the witness stated that Exbt.2 was signed by him but he put his signature in a white paper and, according to learned senior counsel, such statement of OPW No. 1, i.e. the owner of the vehicle, does in no way nullify the contents of Exbt.2 and, so, the Tribunal was bound to rely on that document and would held the monthly wages of deceased, Pradip Laskar as Rs. 2,050/- and determine compensation accordingly. Since the Tribunal committed wrong in not relying on Exbt.2, the High Court may interfere in the award and reassess the compensation taking into account that monthly wages of the deceased as Rs. 2,050/-. 4. I have meticulously gone through the pleadings and the evidence on record. The claimant-petitioners, i.e. the appellants herein, being the wife, minor son and mother of the deceased, contended that the deceased, as an assistant of the jeep vehicle, was paid Rs. 2,050/- as monthly wages by the owner of the vehicle i.e. the OPW No. 1. In the oral evidence of PW1, she clearly stated about the monthly wages of the deceased to the tune of Rs. 2,050/-. Respondent No. 1, the owner of the vehicle, in his pleadings denied the contention of the petitioners regarding the amount of monthly wages but did not state specifically as to what was the amount paid as wages to the deceased. The claimant-petitioners relied on Exbt.2, a certificate alleged to have issued by respondent OPW No. 1, i.e. the owner of the vehicle in respect of monthly wages of the deceased, which speaks that the deceased was paid Rs. The claimant-petitioners relied on Exbt.2, a certificate alleged to have issued by respondent OPW No. 1, i.e. the owner of the vehicle in respect of monthly wages of the deceased, which speaks that the deceased was paid Rs. 2,050/- per month as monthly wages, In his evidence OPW No. 1 stated that he used to pay Rs. 70/- per day to the driver, Rakhal Debnath and Rs. 50/- per day to the assistant, Pradip Laskar(deceased). In his cross-examination on behalf of the claimant-petitioners, Exbt.2 was referred to which the witness identified his signature, He stated that he put his signature in blank paper and it was neither written nor typed when he put his signature. He also denied the suggestion that the driver and assistant were paid wages on monthly basis. 5. According to law, mere marking of a document as exhibit does not necessarily prove the content of the document. The contents of the document is to be proved according to the procedure prescribed by law. Exbt.2 is a document alleged to have issued by respondent No. 1 but except his signature at the bottom he denied the other contents of the document. The claimant-petitioners, admittedly, failed to prove the contents of the document by examining the writer or scribe of the document or any other witness. The contents of the documents, therefore, cannot be read as an item of evidence for taking into consideration to determine the quantum of compensation. The Tribunal, in my considered opinion, rightly taken into account the oral evidence of OPW No. 1 regarding the wages of the deceased and the calculation made by the Tribunal since is found to be according to law, there is no reason to interfere in the finding. 6. The deceased workman was employed by OP No. 1. So, the employer and the employee were the best person to say as to what was the terms and conditions of employment and wages/other emoluments of such employment, in the absence any documentary evidence thereof. 6. The deceased workman was employed by OP No. 1. So, the employer and the employee were the best person to say as to what was the terms and conditions of employment and wages/other emoluments of such employment, in the absence any documentary evidence thereof. The claimant-petitioners being the next kin of the deceased workman might know about the wages of the deceased but the source of their knowledge, as it appears, is the document marked as Exbt.2, which is denied by the alleged maker of the document i.e. OPW.1 and under such circumstances, there is no other option but to rely on the oral evidence of the employer i.e. OPW.1 regarding the wages of the deceased. 7. In view of the discussions made above, since the contents of Exbt.2 has been contradicted by the maker of the alleged document and the content has not been proved according to law, in my considered opinion, the Tribunal rightly taken into account the oral evidence of OPW.1 in respect of the wages of the deceased and, hence, the appeal merits no consideration and, accordingly stands dismissed. Parties are to bear their own cost.