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2018 DIGILAW 955 (HP)

Reliance General Insurance Co. Ltd. v. Tota Devi

2018-05-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - CMP(M) No. 176 of 2018 By medium of this application, the applicant has sought condonation of 4 years, 3 months and 23 days that has crept up in filing of the appeal. For the reasons stated in the application, which is duly supported by the affidavit of Manager (Legal) of the appellant Company, I find sufficient cause to condone the aforesaid delay. Ordered accordingly. Application stands disposed of. Appeal be registered. FAO No. 267 of 2018 2. By medium of this appeal, the appellant has questioned the ex parte award passed by the Commissioner under the Employees Compensation Act, 1923 (for short the ''Act''), whereby it held the claimants to be entitled to a compensation of Rs.4,50,440/- alongwith costs of the petition and further held them entitled to a sum of Rs.2,500/- towards funeral expenses (hereinafter referred to as the impugned award''). 3. The parties here-in-after referred to as the ''claimants'' and ''Insurance Company''. 4. The claimants filed a petition under Sections 3 & 4 of the Act alleging therein that respondent No. 1 Sunil Kumar was the owner of Mahindra Pick-up No. HP-16A-0808 in which Robin was employed as a conductor/labourer by him. Mr. Bhoop Singh was the driver of the vehicle when it met with an accident on the intervening night of 2/3.08.2011, at village Salech, P.O. Kotla Bangi, Tehsil Rajgarh, in which Robin had died on the spot. He was aged about 22 years and had left behind claimants No. 1 to 3 as his legal heirs. His monthly wages were Rs.3500/- and besides he had also been receiving Rs.50/- as daily allowance. The claimants were dependent on the earning of the deceased and prayed that the petition be allowed. 5. Notice of the petition was ordered to be served upon the respondents therein, but despite being served, they did not contest the petition and ex parte proceedings were carried out against them. 6. On the basis of the ex parte evidence, the learned Commissioner passed the aforesaid impugned award in favour of the claimants which has been questioned by the insurance company on the ground that the award passed by the learned Commissioner is based upon surmises and conjectures and is perverse and, therefore, should be set aside. I have heard learned counsel for the parties and have gone through the material placed on record. 7. I have heard learned counsel for the parties and have gone through the material placed on record. 7. At the outset, it may be observed that existence of substantial question is sine qua non for the exercise of jurisdiction under Section 30 of the Act and, therefore, appeal would not lie on the ground of erroneous finding of facts based on appreciation of the relevant evidence. Substantial question of law would carry the same meaning as is commonly understood. (Ref:- Om Parkash Batish vs. Ranjit alias Ranbir Kaur and others (2008) 12 SCC 212 ). 8. By way of ex parte evidence, the claimant No.l, apart from other witnesses, examined herself as PW6 and stated that her son at the time of accident was 22 years old and has been working as conductor/labourer in the offending vehicle of which Sunil Kumar was the owner and Bhoop Singh was the driver. In the intervening night of 2/3.08.2011, the vehicle met with an accident resulting in the death of her son. The claimants were mother, wife and minor child, who were dependent upon the earning of the deceased. The deceased was getting Rs.3500/- per month as salary and Rs.50/- as daily allowance towards diet money. 9. C. Ram Lai appeared as PW-1 and tendered in evidence FIR Ext. PW-l/A, dated 03.08.2011. A perusal of the FIR shows that the accident of the aforesaid vehicle had taken place at the given time and place in which the deceased died. 10. Amit Kumar, In-charge, Government Primary School, Sathar, P.O. Habban appeared as PW-2 and tendered in evidence school leaving certificate of the deceased Ext.PW2/A, wherein the date of birth of the deceased is recorded as 08.12.1991. 11. Sunil Kumar, owner of the vehicle, appeared as PW-3 and stated that his vehicle met with an accident in the intervening night of 2/3.08.2011, in which Robin had died. He further stated that his vehicle had been insured with the Insurance Company. He tendered in evidence the cover note Ext.PW-3/B. 12. Tota Ram, Junior Assistant/Licence Clerk, RLA Office, Rajgarh, appeared as PW-5 and tendered in evidence the driving licence of the driver Ext.PW-5/A, which was valid for driving light transport vehicle. He tendered in evidence the copy of RC Ext.PW- 5/B. 13. Dr. Chitvan, Medical Officer, C.H. Rajgarh appeared as PW-4 and stated that he had conducted postmortem of deceased Robin on 03.08.2011. He tendered in evidence the copy of RC Ext.PW- 5/B. 13. Dr. Chitvan, Medical Officer, C.H. Rajgarh appeared as PW-4 and stated that he had conducted postmortem of deceased Robin on 03.08.2011. He further stated that the deceased Robin had died due to cardio pulmonary arrest due to head injury, which could be caused in a road side accident. He proved on record the postmortem report Ext.PW-4/A. 14. As observed above, neither owner and driver of the vehicle nor the insurance company contested the claim as set-up by the claimants. Therefore, once that be so, then obviously no fault can be found with the award passed by the learned Commissioner, more particularly, when there is nothing on record to indicate that the same is against law. The FIR in question coupled with the statement of the owner of the vehicle clearly proves the accident in question. The statement of PW-4 establishes that the deceased had died on account of injuries sustained in the accident. 15. As regards the income of the deceased and award of compensation, the same are strictly in accordance with the provisions of the Act. The evidence led by the claimants clearly shows that the deceased was earning Rs.3500/- + Rs.50/- as daily diet allowance and since he was earning more than Rs.4000/- per month as such explanation II to Section 4 of the Act, the wages were deemed to be Rs.4000/- as the deceased had completed 19 years of age on the date of accident, as such, the relevant factor required to be applied was 225.22. Once that be so, then the claimants were obviously entitled to the following amount of Rs.2000 x 225.22 = 4,50,440/- + Rs.2500/- towards funeral expenses and this is what precisely the learned Commissioner has awarded. 16. Once this be the position, obviously then no question, much less substantial question of law, arises for consideration. 17. Consequently, there is no merit in this appeal and the same is accordingly dismissed.