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2018 DIGILAW 349 (JHR)

Permanand Mandal v. Most. Bibi Fatima

2018-02-09

ANIL KUMAR CHOUDHARY

body2018
ORDER : 1. Heard the parties. 2. This miscellaneous appeal has been preferred against the award dated 15.3.2010 passed by the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka in Workmen Compensation Case No. 14/07(C) wherein defendant no. 1/appellant has been directed to pay a sum of Rs. 1,87,182/- to the applicant/respondent 1st Set Most. Bibi Fatima by 15.4.2010 and also for quashing the order dated 10.6.2010 passed in Workmen Compensation Case No. 14/07(C), whereby the review petition, filed by the defendant no. 1/appellant, has been rejected. 3. The brief facts, involved in this case, is that applicant nos. 1 and 2 -respondents 1st Set namely, Bibi Fatima and Md. Ilias Ansari, filed an application before the Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka against defendant no. 1-appellant on 13.12.2007 which was registered as Workmen Compensation Case No. 14/07(C). The case of the applicant nos. 1 and 2 -respondents 1st Set is that the husband of the applicant no. 1 and son of applicant no. 2 namely, Md. Sajjad Ansari was working as driver under the defendant no. 1-appellant. During the course of carrying passengers in the vehicle bearing Registration No. JH17A-1087 from Mahagama to Sahibganj, Md. Sajjad Ansari was murdered on 31.3.2007 for which FIR was lodged against unknown persons. Claiming compensation under the Workmen Compensation Act, the applicants/ respondents 1st Set filed the said application. After notice, defendant no. 1/appellant took plea that the vehicle was insured with the Oriental Insurance Co. Ltd., Godda-defendant no. 2/respondent 2nd Set and the liability of the appellant in respect of the claim made by the applicant was fully covered by the said Insurance policy of the Oriental Insurance Co. Ltd. hence the Oriental Insurance Co. Ltd. was liable to pay the compensation. In this backdrop Oriental Insurance Co. Ltd. was impleaded as defendant no. 2 in the said application for workmen compensation. Both, the appellant and the Oriental Insurance Co. Ltd. filed written statements taking plea that at the time of the murder of the deceased-Md. Sajjad Ansari was not driving the vehicle; hence, they are not liable to pay the compensation. Before the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, only applicant nos. 1-Most. Bibi Fatima was examined as sole witness from either of the parties and she has not been cross-examined by the Defendants. Sajjad Ansari was not driving the vehicle; hence, they are not liable to pay the compensation. Before the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, only applicant nos. 1-Most. Bibi Fatima was examined as sole witness from either of the parties and she has not been cross-examined by the Defendants. Thus the testimony of the said sole witness has remained unchallenged. On the basis of the evidence available on record, the impugned award was passed. Though learned counsel for the appellant took several grounds for challenging the impugned order, but at the time of hearing, he confined his argument to the sole ground that the Oriental Insurance Co. Ltd. is liable to pay the compensation amount and not the appellant. 4. In support of his contention, learned counsel has relied upon the judgment of the Hon’ble Supreme Court of India in the case of Smt. Rita Devi and Others v. New India Assurance Co. Ltd. and Another, AIR 2000 SC 1930 , wherein in paragraph–10 the Hon’ble Court has held as under:- “10. The question, therefore, is can a murder be an accident in any given case? There is no doubt that 'murder', as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a 'murder' which is not an accident and a 'murder' which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.” 5. It is further submitted by the learned counsel for the appellant that as the sole witness Most. Bibi Fatima, examined, has categorically stated in her deposition that Md. Sajjad Ansari was murdered at the time of driving the vehicle and said evidence in the record has remained uncontroverted, unchallenged and undisputed. It is further submitted by the learned counsel for the appellant that as the sole witness Most. Bibi Fatima, examined, has categorically stated in her deposition that Md. Sajjad Ansari was murdered at the time of driving the vehicle and said evidence in the record has remained uncontroverted, unchallenged and undisputed. So, in view of the principles laid down by the Hon'ble Supreme Court in the case of Smt. Rita Devi and Others (supra), respondent no. 3-Oriental Insurance Co. Ltd. is liable to pay the compensation. 6. Learned counsel for the respondents 1st Set submits that since the entitlement of entire compensation of the respondents 1st Set is not disputed and as the appellant has already deposited the compensation amount with the Deputy Labour Commissioner-cum- Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka and the applicants/respondents 1st Set being poor persons are running from pillar to post for last 8 years. Hence, the impugned award be modified to the extent that the respondent no. 3 2nd set be directed to pay the claim amount to the appellant and the amount, deposited by the appellant, be released in favour of the applicants/respondents 1st Set. 7. Learned counsel for the defendant no. 2/respondent 2nd Set submits that since the murder of the deceased has not been taken place during course of driving the vehicle, hence the Oriental Insurance Co. Ltd. is not liable to pay the compensation. To buttress the submission, learned counsel drew attention of the Court to the fact that as mentioned in the FIR, the dead body of the deceased was found at a place far away from the vehicle but learned counsel for the defendant no. 2-respondent 2nd set fairly submits that there is no eye witness to the occurrence and the Oriental Insurance Co. Ltd. has neither cross- examined the sole witness-Most. Fatima Bibi, examined by the appellant in this case nor it made any attempt to examine any witness on its behalf before the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act. 8. Having heard learned counsel for the parties and perusal of the record I find that the only substantive evidence left on the record is that of the unchallenged deposition of the sole witness Most. Bibi Fatima who in categorical term has stated that the deceased died while driving the vehicle. 9. 8. Having heard learned counsel for the parties and perusal of the record I find that the only substantive evidence left on the record is that of the unchallenged deposition of the sole witness Most. Bibi Fatima who in categorical term has stated that the deceased died while driving the vehicle. 9. It is settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon’ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Another vs. Bhagwantbuva (Dead) Thr. LRs. & Others, AIR 2013 (SC) 1204 in para-31 in this respect held as under:- “31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : 1993 AIR SCW 3675, State of U.P. v. Nahar Singh (dead) & Others, AIR 1998 SC 1328 : 1998 AIR SCW 1200, Smt. Rajinder Pershad (Dead) by LRs. v. Darshana Devi, AIR 2001 SC 3207 : 2001 AIR SCW 3042 and Sunil Kumar & Another v. State of Rajasthan, AIR 2005 SC 1096 : 2005 AIR SCW 589.” (Emphasis given by me) In view of this settled position of law this court is of the considered view that in the absence any cross examination of the sole witness of the applicant and thereby in absence of any attention having been drawn in respect of any part of her testimony for explaining the same, the evidence on record that the deceased died while driving the vehicle is to be accepted. Certainly the place of recovery of dead body in a case of murder, in the absence of any other connecting material is not the proof that the place of occurrence is the place where dead body was recovered. 10. In this backdrop, complying the principle laid down by the Hon'ble Supreme Court in the case of Smt. Rita Devi and others (supra), in the facts and circumstances of the present case, this court is of the considered view that there being no evidence on record that the murder was pre-planned one rather the evidence on the record is to the contrary that the same has taken place while the deceased was driving the vehicle. So in the facts and circumstances of the case, it can be termed to be an accidental murder. Hence the Defendant no. 2-respondent 2nd set-Oriental Insurance Co. Ltd. is liable to pay the compensation amount. 11. As the learned counsel for the appellant concedes the submission of the respondents 1st set that as the compensation has already been deposited, the impugned award be modified to the extent that the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka be directed to direct the respondent no. 3-Oriental Insurance Co. 11. As the learned counsel for the appellant concedes the submission of the respondents 1st set that as the compensation has already been deposited, the impugned award be modified to the extent that the Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka be directed to direct the respondent no. 3-Oriental Insurance Co. Ltd. to pay the compensation amount to the applicants/ respondents 1st set and he has no objection to the submission of the applicants/respondents 1st set that the amount, which has already been deposited, be released in their favour and the respondent no. 3-Oriental Insurance Co. Ltd. be directed to pay a sum of Rs. 1,87,182/- to the appellant within a specified time. The learned counsel for the respondent no. 3-Oriental Insurance Co. Ltd. submits that Insurance Company has also no difficulty with such arrangement. 12. Considering the aforesaid facts and circumstances of the case, the impugned award is modified to the extent that instead of the appellant-defendant no. 1, defendant no. 2-respondent 2nd Set being Oriental Insurance Co. Ltd. is liable to pay the claim of Rs. 1,87,182/- to the applicants-respondents 1st Set. But keeping in view that the ultimate beneficiary is the applicants-respondents 1st Set and it is not disputed that they are entitled to the claim amount and the beneficial nature of the legislation involved in question. (i) The Deputy Labour Commissioner-cum-Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka is directed to release the amount of Rs. Rs. 1,87,182/- (which amount has already been deposited by the appellant-defendant no. 1) to the applicants-respondents 1st Set within two months from the date of receipt-production of a copy of this order. (ii) The defendant no. 2-respondent 2nd Set -Oriental Insurance Co. Ltd. is directed to pay the said amount of Rs. 1,87,182/- to the defendant no. 1-appellant within one month from the date of receipt/production of a copy of this order. 13. With the aforesaid modification and directions, this miscellaneous appeal stands disposed of. 14. Let a copy of this order be sent to the Deputy Labour Commissioner-cum- Commissioner for Workmen Compensation Act, Santhal Pargana Division, Dumka.