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2016 DIGILAW 166 (GAU)

Champa Sahu v. Chandra Mala Devi

2016-03-08

SUMAN SHYAM

body2016
ORDER : 1. Heard Mr. B.J. Mukherjee, learned counsel for the appellant. Also heard Mr. A. Ahmed, learned counsel appearing for the respondent No. 2 Insurance Company. None appears for the respondent No. 1. 2. This appeal is directed against the judgment and order dated 27-11-2008 passed by the learned Commissioner, Workmen’s Compensation, Golaghat in W.C. Case No. 16/2008 rejecting the claim petition filed by the present appellant by holding that there was no nexus between the fatal accident suffered by the husband of the claimant and his employment. 3. The brief facts of the case is that the deceased husband of the claimant/respondent No. 1 Rajen Sahu who was employed as handyman/cleaner in respect of a truck bearing registration number AS-25/B-3755 owned by the respondent No. 1. Rajen Sahu was on duty in the aforesaid truck on 07-01-2007 while the vehicle was proceeding from Dergaon towards Bokakhat when some mechanical defects in the brake of the truck had developed, as result of which the handyman i.e. Rajen Sahu went under the truck to check the parts connected with the brakes. When the said handyman had come out of the truck and was standing in front of it with its bonnets open, an unknown vehicle had hit Rajen Sahu and fled away from the place of accident. The aforesaid accident had eventually resulted into death of Rajen Sahu i.e. husband of the claimant No. 1. It is the claim of the appellant that her deceased husband Rajen Saju was working as a handyman under the respondent No. 1. At the time of his premature death her deceased husband was aged about 40 years and was receiving a salary of Rs. 4000/- per month excluding the daily allowances. Since the deceased person had left behind the claimant as well as two minor children, hence, a compensation amount of Rs. 6,00,000/- had been prayed for by the claimant by filing the aforementioned W.C. case. 4. Upon receipt of notice in connection with the aforementioned case the respondent No. 1/ opposite party No. 1 (owner) had appeared and filed written statement admitting the fact that Rajen Sahu was in fact a permanent employee under her earning a monthly salary of Rs. 4000/- excluding the daily allowances. 4. Upon receipt of notice in connection with the aforementioned case the respondent No. 1/ opposite party No. 1 (owner) had appeared and filed written statement admitting the fact that Rajen Sahu was in fact a permanent employee under her earning a monthly salary of Rs. 4000/- excluding the daily allowances. In the said written statement it was also admitted that Rajen Sahu had died due to injuries sustained in the aforementioned road accident during the course of his employment in connection with the vehicle number AS-25/B-3755 belonging to the opposite party No. 1. The opposite party No. 2/respondent No. 2 (Insurance Company), however, did not file any written statement. 5. After considering the pleadings filed by the parties the learned Commissioner had framed the following issues for trial:- (i) Whether the claim petition is maintainable in law? (ii) Whether the deceased Rajen Sahu was the paid and permanent handyman/ cleaner of the truck bearing regd. No. AS-25/B-3755, if so, whether he died as a result of injuries sustained in an accident/ incident arising out of and in the course of his employment. (iii) Whether, the claimant is entitled to get compensation, if so, what is the quantum and from whom? 6. The claimant side has examined one witness in the form of the claimant herself and adduced documentary evidence. However, the opposite parties/respondents did not adduce any evidence. After hearing the parties and considering the materials available on record, the learned Commissioner had come to the conclusion that there was no nexus between the death of the deceased Rajen Sahu and the employment of the deceased. The learned Tribunal had also disbelieve the signature of the opposite party No. 1/respondent No. 1 appearing in the written statement and, therefore, rejected the admission made in the written statement, inter alia, on the ground that no proper vakalatnama had been filed along with the written statement. Being aggrieved by the aforesaid judgment and order passed by the learned Commissioner, Workmen’s Compensation, Golaghat the appellant is before this Court. 7. Mr. B.J. Mukherjee, learned counsel for the appellant submits that the oral evidence adduced by the claimant (CW-1) to the effect that her husband was under employment of the opposite party No. 1 on the date on which the accident had occurred has gone unrebutted from the side of the respondents. 7. Mr. B.J. Mukherjee, learned counsel for the appellant submits that the oral evidence adduced by the claimant (CW-1) to the effect that her husband was under employment of the opposite party No. 1 on the date on which the accident had occurred has gone unrebutted from the side of the respondents. That apart, the owner of the vehicle had also admitted the aforesaid fact by filing her written statement. He submits that there was no justifiable ground for the learned Commissioner to ignore the aforesaid materials available on record and thereby reject the claim petition on the ground that there was no nexus between the accident and the employment of the deceased, more so, when the aforesaid fact has not been denied by the owner of the vehicle. The learned counsel for the appellant submits that on account of such erroneous findings recorded by the learned Commissioner, the impugned award is liable to be set aside and the matter be remanded for determination of the compensation. 8. By opposing the claim of the appellant/claimant, Mr. A. Ahmed, learned counsel for the respondent No. 2 submits that the evidence adduced on record by the appellant is not sufficient to establish the fact that the deceased was under the employment of the opposite party No. 1/ respondent No. 1 on the date on which the fatal accident had occurred. Mr. Ahmed further submits that the claimant being the sole witness examined by the appellant side, who is a party interested in the matter, her lone testimony cannot be relied upon for establishing the link between the accident and the employment of the deceased. It was incumbent upon the claimant/ appellant to examine the driver of the truck so as to prove the said fact. Since the appellant has failed to prove the fact that her husband was in employment under the opposite party No. 1 when the accident took place, hence, the Insurance Company cannot be fastened with any liability in the matter. Mr. Since the appellant has failed to prove the fact that her husband was in employment under the opposite party No. 1 when the accident took place, hence, the Insurance Company cannot be fastened with any liability in the matter. Mr. Ahmed, however, does not deny or dispute that if it is established that the deceased husband of the claimant had suffered the fatal accident during the course of his employment under the opposite party No. 1 then in that event the case of the claimant would come within the purview of the Section 3 of the Workmen’s Compensation Act, 1923 and the claimant would be entitled to receive just compensation on account of death of her husband. 9. I have considered the rival submission made at the bar and have also perused the record including the impugned judgment and order passed by the learned Commissioner. As has been indicated hereinbefore, the claim of the appellant/ claimant appears to have been rejected by the learned Commissioner solely on the ground that the claimant could not establish any ‘nexus’ between the death of the deceased Rajen Sahu and his employment under the opposite party No. 1. But on perusal of the record it appears that the CW i.e. the claimant in her evidence had categorically stated that her husband Rajen Sahu was under the employment of the opposite party No. 1/ respondent No. 1 as a handyman in respect of the aforesaid truck when the accident took place. In support of the aforesaid statement the claimant side had also produce the documentary evidence in the form of G.D. Entry No. 173 dated 07-01-2007 of Dergaon Police Station, certificate issued by the Dergaon Police Station, Post Mortem Report of Rajen Sahu carried out at the K.K. Civil Hospital, Golaghat as well as the Employment-cum-Salary Certificate. The aforementioned evidence adduced by the claimant was sufficient to prima facie establish her claim for compensation on account of death of her husband in the aforementioned fatal accident. It was, therefore, incumbent upon the opposite parties/ respondents to lead evidence in rebuttal so as to disprove the case of the claimant which they had failed to do in the instant case. 10. A perusal of the record further goes to show that the opposite party No. 1/employer had filed her written statement which was taken on record by the learned Commissioner by the order dated 18-06-2008. 10. A perusal of the record further goes to show that the opposite party No. 1/employer had filed her written statement which was taken on record by the learned Commissioner by the order dated 18-06-2008. There is nothing on record to show that any objection was raised by any of the parties regarding the genuineness of the signature appearing in the said written statement or the legitimacy of the written statement filed on behalf of the opposite party No. 1. In such view of the matter, the admission made in the written statement ought to have been taken note of by the learned Commissioner while adjudicating the claim petition. However, instead of doing so, the learned Commissioner had rejected the written statement filed by the opposite party No. 1 by the judgment and order dated 27-11-2008 not only on completely flimsy and untenable ground but also by contradicting his own order by which the written statement was taken on record. IN view of the categorical admission made by the opposite party No. 1 admitting the claim of employment and earning of the deceased husband of the claimant, which has not even been questioned by the opposite party No. 2 at any stage, there was no further requirement on behalf of the claimant to establish the fact that her husband late Rajen Sahu was an employee of the opposite party No. 1 on the date on which the fatal accident resulting into his death had occurred. 11. For the discussions and reasons mentioned in the foregoing paragraphs, I am of the considered opinion that the learned Commissioner, Workmen’s Compensation, Golaghat has clearly erred in law in dismissing the claim petition filed by the appellant/claimant by holding that there was no nexus between the death of the deceased Rajen Sahu and his employment. The materials on record was sufficient to establish that deceased Rajen Sahu was in employment under the opposite party No. 1 in his capacity as handyman in the truck owned by the opposite party No. 1 bearing registration number AS-25/B-3755 on 07-01-2007 when the accident took place. The materials on record was sufficient to establish that deceased Rajen Sahu was in employment under the opposite party No. 1 in his capacity as handyman in the truck owned by the opposite party No. 1 bearing registration number AS-25/B-3755 on 07-01-2007 when the accident took place. Since there is no dispute about the fact that the vehicle had a valid insurance policy issued by the opposite party No. 2, hence, the present is a clear case where the claim of the claimant/ appellant comes under the purview of the Section 3 of the Workmen’s Compensation Act, 1923 making the respondent No. 2 liable. It is held accordingly. 12. Consequently, the judgment and order dated 27-11-2008 passed by the learned Commissioner, Workmen’s Compensation, Golaghat in connection with W.C. Case No. 16/2008 is herby set aside. The matter is remanded back to the learned Commissioner to assess the compensation which is found to be just and reasonable in accordance with law. 13. Considering the fact that the accident in question had occurred way back in the year 2007 and the claimant with two minor children, has been denied the benefit of the compensation since so many years, the learned Commissioner is requested to complete the proceeding for assessment of the compensation within a period of 90 days from the date of receipt of the copy of this order after giving due opportunity of being heard to all the parties to the proceeding. With the above observation this appeal stands allowed. Send back the LCR. As agreed to by the learned counsel for the parties, the next date of appearance before the court of learned Commissioner, Workmen’s Compensation, Golaghat is hereby fixed as 01-04-2016.