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Rajasthan High Court · body

2015 DIGILAW 959 (RAJ)

New India Assurance Co. v. Gouri Shankar

2015-04-29

MAHESH CHANDRA SHARMA

body2015
JUDGMENT : Mahesh Chandra Sharma, J. The instant appeal has been filed against the impugned order dated 16-4-2012 passed by the Employees Compensation Commissioner, Jaipur-II, Jaipur. 2. Brief facts of the case are that on 25-2-2010 deceased was employed as khallasi on truck No. GJ-12X-2428, the truck became disorder near Jetpura and parked at road side. The deceased as per instruction of respondent employer was going to purchase the parts of truck by a motor cycle to Jaipur City. At about 7.15 p.m. near Badpipali collided with an unknown trolla, consequently, deceased sustained injuries and was taken to SMS Hospital, Jaipur where he was declared dead. With regard to the aforesaid accident, a claim petition was filed on behalf of the claimants claiming compensation as mentioned therein. 3. Notices were issued to the opposite parties. Reply to the claim petition was filed and the learned Commissioner framed the issues. After hearing all the parties, the learned Commissioner passed the aforesaid impugned order dated 16-4-2012. 4. Against the impugned order dated 16-4-2012, the appellant-Ins. Company preferred the instant appeal for the relief as prayed for in it. 5. Learned counsel for the appellant-Ins. Company has contended that the learned Commissioner has failed to appreciate each and every aspect of the matter as also the evidence available on record. The impugned order passed by the learned Commissioner is illegal, without jurisdiction and contrary to the facts of the case. 6. It has been contended that the learned Commissioner has committed an error in taking the deceased as employee only on the basis of reply filed by the employer but did not appear in evidence to prove the same. It has also committed an error in considering the income of deceased Rs. 4000/- instead of Rs. 3000/- per month. The learned Commissioner has not considered the fact that at the time of accident the deceased was not discharging any work of Khallasi on truck but was doing the work of owner of purchasing the parts while going by motor cycle and died in accident by unknown trolla. 7. It has also been contended that the deceased died while going on motor cycle for the employer work as such there was no proximity or direct connection with the death of deceased with insured vehicle in any manner. 7. It has also been contended that the deceased died while going on motor cycle for the employer work as such there was no proximity or direct connection with the death of deceased with insured vehicle in any manner. It has been further submitted that the impugned order has been passed without considering the aspect that the permit of the vehicle was not effective on the date of accident and the same was used in violation of the specified condition of the policy. 8. At last, it has also been averred that the learned Commissioner while passing the impugned order has not taken into consideration the objections which he has raised by way of aforesaid appeal. The finding of learned Commissioner on issue Nos. 2 and 3 is contrary to the material available on record. Thus, the impugned order passed by the learned Commissioner qua issue Nos. 2 and 3 be quashed and set aside. The issue Nos. 2 and 3 are reproduced as under : (Vernacular matter omitted. Ed.) 9. In support of his submissions, he has placed reliance on the judgments of Hon'ble Apex Court, reported in (2009) 13 SCC 710 : AIR 2009 SC 3056 Ningamma v. United India Ins. Co. and (2009) 13 SCC 405 : AIR 2009 SC 2019 Malikarjuna G. Hiremath v. Branch Manager, Oriental Ins. Co. and (2010) 10 SCC 536 : 2010 AIR SCW 5872 Mamjat Bi Bapusab Nadaf v. United India Ins. Co.). 10. On the other hand, Mr. Vinay Mathur, learned counsel for the respondents has opposed the submissions advanced on behalf of appellant, and supported the impugned order passed by the learned Commissioner, and requested for maintaining of impugned order. It has been submitted that initially the burden to prove its defence was with the Insurance Company. In support of his various oral submissions advanced, Mr. Vinay Mathur, has placed reliance on the judgments rendered in The New India Assu. Co. v. Tara Kanwar (SBCMA No. 785 of 2014) decided on 8.1.2015; National Ins. Co. v. Kamla Devi (SBCMA No. 5155 of 2009) decided on 15.10.2014; Malikarjuna G. Hiremath v. The Branch Manager, The Oriental Ins. Co. (CMA No. 956 of 2009) decided on 12.2.2009 : ( AIR 2009 SC 2019 ) and Mackinnon Mackenzie and Co. v. Ibrahim Mahmmed Issak (CMA No. 850 of 1967) decided on 14.8.1969. 11. Co. v. Kamla Devi (SBCMA No. 5155 of 2009) decided on 15.10.2014; Malikarjuna G. Hiremath v. The Branch Manager, The Oriental Ins. Co. (CMA No. 956 of 2009) decided on 12.2.2009 : ( AIR 2009 SC 2019 ) and Mackinnon Mackenzie and Co. v. Ibrahim Mahmmed Issak (CMA No. 850 of 1967) decided on 14.8.1969. 11. I have heard learned counsel for the parties and perused the impugned order dated 16-4-2012 passed by learned Commissioner. 12. In my considered view, the learned Commissioner while passing the impugned award has not gone through the facts of the case and passed the impugned order surreptitiously. Thus, the impugned order passed by the learned Commissioner needs interference by this Court. 13. In the result, this appeal is partly allowed and the impugned order passed by learned Commissioner dated 16-4-2012 qua issue Nos. 2 and 3 is quashed and set aside, and the matter is remanded back to the learned Commissioner with the direction to decide the matter afresh as early as possible, qua issue Nos. 2 and 3 in the light of grounds raised by the learned counsel for the appellants in the aforesaid appeal and the aforesaid judgment, if applicable and other judgments to be cited by learned counsel for the parties, if any, after issuing notice to all the concerned parties and giving opportunity of hearing to them. 14. Both the parties are directed to appear before the learned/Tribunal on 30-9-2015.