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2015 DIGILAW 1372 (GAU)

New India Assurance Co. Ltd. v. Sankar Pd. Bora

2015-11-03

N.CHAUDHURY

body2015
JUDGMENT : In this appeal under Section 30 of the Workmen’s Compensation Act, 1923 ( now renamed as ‘Employees Compensation Act, 1923’ and hereinafter referred to as ‘Act’) the Insurance Company is the appellant. By the impugned Judgment and award dated 20.9.2006 the W.C. Commissioner, Nagaon directed the insurance company to make payment of Rs.1,55,985 along with interest @ 9% per annum within 30 days from the date of issue of the order. The insurance company deposited the principal amount and thereafter preferred the appeal. 2. This court while admitting the appeal framed the following two substantial questions of law and issued notice to the claimant and the owner. (i) Whether the learned Commissioner, workmen Compensation can pass an award under the provisions of workmen Compensation Act, 1923 without deciding the question as to whether the claimant is an workman within the meaning of the said Act in view of the specific plea taken by the Insurance Company in the written statement that the claimant is not a workman? (ii) Whether the learned Commissioner, workmen Compensation can pass an award under the provisions of workmen Compensation Act, 1923 without coming to any finding relating to the age as well as the monthly wages of the claimant? 3. The claimant appeared by filing Vakalatnama. But when the matter is taken up for hearing no one has put up appearance to defend the case. Under such circumstances, the appeal is taken up for ex-parte hearing. 4. The relevant facts involved in the appeal are that one Shankar Prasad Bora made a claim before the WC Commissioner at Nagaon stating that he was engaged by Siva Prasad Bora (opposite party No. 1) as a driver of vehicle No. AS-01/B-7264 which is under valid insurance of the opposite party No. 2 (insurance company). According to him, the vehicle met with an accident on 5.2.2002 resulting in grievous injuries on his person for which he has become permanently and partially disabled and lost his job. He claimed that before the accident, he was paid salary of Rs.2500/- per month and daily allowance of Rs.50/-. Samaguri PS under whose jurisdiction the accident had taken place made GD Entry No.77 dated 5.2.2002 with respect to the incident. The aforesaid claim was numbered as NWC Case No.151 of 2002 whereupon the opposite party No. 2 was notified. He claimed that before the accident, he was paid salary of Rs.2500/- per month and daily allowance of Rs.50/-. Samaguri PS under whose jurisdiction the accident had taken place made GD Entry No.77 dated 5.2.2002 with respect to the incident. The aforesaid claim was numbered as NWC Case No.151 of 2002 whereupon the opposite party No. 2 was notified. Opposite party No.1, owner appeared and submitted written statement admitting the basic facts that claimant was a paid driver under him with respect to the aforesaid vehicle at monthly salary of Rs.2500/- in addition to daily allowance of Rs.50/-. It was also admitted that there was an accident on 5.2.2002 resulting in fracture injury of the claimant whereby he became incapacitated. Opposite party No.1 further stated that he was not liable to make payment of compensation as the vehicle was under valid insurance of the opposite party No.2 vide policy No. 3153070121457. 5. The opposite party No.2 appeared and contested the case stating that the claimant was not a paid driver of the owner and that there was no motor accident at all on 5.2.2002 causing injuries to the claimant. Rather he jumped out of the car and received the injuries. The insurance company even denied existence of driving license of the claimant and alleged him to be guilty of contributory negligence. On being asked to prove their respective cases, the claimant examined himself as PW-1. He proved documents like Accident information report (Exhibit-1), disablement certificate (Exhibit-2), medical certificate(Exhibit-3), discharge certificate (Exhibit-4), blood report (Exhibit-5),advice slip and prescription (Exhibit-6), x-ray report ((Exhibit-7 to 11 ) and salary certificate ((Exhibit-12). The claimant examined Dr. BMR Khaderia as PW-2 to prove the disablement of the injuries. The doctor stated on oath that he examined the claimant on 5.2.2002 who was found to be 30 years of age. He had fracture of L-1 vertibra and transfers process of L-2 vertibra without neurological symptoms and he was referred to orthopaedic surgeon. According to PW-2 claimant suffered physical disability to the extent of 30% for which he had lost earning capacity to the extent of 50% as a result of post traumatic complications. 6. The insurance company examined one Nripen Ch.Kalita as sole witness who stated that the owner by filing a claim petition to the insurance company described the driver to be his own brother. 6. The insurance company examined one Nripen Ch.Kalita as sole witness who stated that the owner by filing a claim petition to the insurance company described the driver to be his own brother. However, this witness did not say a word stating that the claimant was not a paid driver of the opposite party No.1. Even cross examination of PW-1 claimant does not show that there was any fruitful cross examination on Exhibit-12 salary certificate. In view of such position of the evidence and the respective stand of the parties, the WC Commissioner by his judgment and award dated 29.8.2006 assessed compensation under Section 4(i)(C)(ii) of the Act and ordered that a sum of Rs.1,55,985/- be paid by the insurance company to the claimant along with 9% per annum . It is this judgment which has been brought under challenge in the present appeal. 7. I have heard Mr. K.K. Bhatta, learned counsel for the appellant. No one has appeared to argue the case on behalf of the respondent although name of the learned engaged counsel has been clearly shown in the cause list. I have perused the LCR including the respective pleadings of the parties and the evidence adduced by them. The first substantial question of law was framed possibly on the argument made by the learned counsel for the appellant that the jurisdictional W.C. Commissioner proceeded to assess compensation under the Act without even being satisfied that claimant was a workman under the owner with whom opposite party No.2 has insurance contract. But having gone through the judgment and award I do not find that such a substantial question of law does arise from the findings of the learned WC Commissioner. The WC Commissioner has considered the evidence on record including salary certificate (Exhibit-12). He has noticed the evidence led by the insurance company in entirety and then arrived at the specific findings as follows:- “In view of above, I am of the opinion that, the claimant was the employee in the vehicle owned by his own brother and there was master servant relationship between them. Under the above circumstance, the claimant is entitled to compensation.” 8. It is not correct that WC Commissioner did not decide the question as to employer and employee relationship between the claimant and the opposite party No.1. Once such a finding was noticed, Mr. Under the above circumstance, the claimant is entitled to compensation.” 8. It is not correct that WC Commissioner did not decide the question as to employer and employee relationship between the claimant and the opposite party No.1. Once such a finding was noticed, Mr. K.K. Bhatta, learned counsel for the appellant would argue that the findings of the WC Commissioner is not correct. I am afraid such a challenge is not possible in an appeal under Section 30 of the Act. The question as to whether there is employer employee relationship between the claimant and the owner is a matter of fact. The status of the claimant being a matter of fact cannot be substantial question of law. The question would have been different if the learned counsel would have argued that such a finding of the WC Commissioner is perverse. In that event, this court would have been called upon to see whether there are materials on record to arrive at the finding that there was employer and employee relationship between the owner and the claimant. No such substantial question of law has been framed. However, this court even then proceeded to examine the evidence of both the sides and found that claimant has successfully adduced salary certificate as Exhibit-12. This document issued by the owner shows that the clamant was made monthly payment as a paid driver. It is, therefore, not possible to say that there is no material on record to arrive at a finding that there is employer employee relationship between the parties. It cannot be lost sight of in this case that the claim of the workman of being a paid driver under the opposite party No. 1 has been admitted by the opposite party No.1 clearly and unambiguously by filing a written statement. It is the opposite party No.2 insurance company which took the plea that the claimant was never paid by the owner. Having made such a bald claim in the written statement, the insurance company did not lead any evidence to that effect. The examination in chief of the sole witness of the insurance company does not reveal a single line suggesting that the claimant was never paid as a driver by the owner. The only statement made by DW is that claimant is none other than the brother of the owner. The examination in chief of the sole witness of the insurance company does not reveal a single line suggesting that the claimant was never paid as a driver by the owner. The only statement made by DW is that claimant is none other than the brother of the owner. The learned WC Commissioner has taken care of such argument in the impugned judgment. By placing reliance of a judgment of the Karnataka High court in the case of United India Insurance Co. Ltd. vs. Prakash Shankar Gaurav reported in 2006 (109) HR 328, the WC Commissioner arrived at the finding that even a father may engage his son as an employee in a vehicle. There is no law prohibiting such situation. Thus, it appears that the WC Commissioner has considered pros and cons of this argument and arrived at the findings relying on oral and documentary evidence, Exhibit-12 salary certificate. On the other hand, insurance company has led no evidence to show that claimant is not a paid employee. No claim to that effect has been made by the sole witness of the insurance company when he was examined on oath. This being the position, even an argument that findings of the learned WC Commissioner is perverse would not have been entertained. Consequently, it is held that the sole substantial question of law does not arise from the facts and circumstances of this case. The second substantial question of law is not pressed by Mr. K.K. Bhatta and he submits that he would only rely on substantial question No.1. Having so found, the appeal is dismissed. 7. Impugned judgment and award passed by the learned WC Commissioner is upheld. Interim order shall stand vacated. 8. Send down the records.