Gauhati High Court
The United India Insurance Co. Ltd vs Bimal Bhumiz @ Milan Bhumiz & 2 Ors on 10 November, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
M.F.A. NO. 3 OF 2011
United India Insurance Company Limited
... Appellant
-Versus-
Sri Bimal Bhumiz @ Milan Bhumiz and others
..Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the appellant : Mrs. RD Mozumdar,
Ms. C. Mozumdar, Advs.
For the respondents : None appears
Date of hearing &
judgment : 10.11.2017.
JUDGMENT AND ORDER (ORAL)
Heard Mrs. RD Mozumdar, the learned counsel for the appellant. None appears on call for the respondents although notice has been duly served. Hence, this matter was heard ex-parte against them.
2. This appeal under Section 30 of the Workmen's Compensation Act, 1923, is directed against the judgment and order dated 19.10.2010 passed by the learned Commissioner, Workmen's Compensation, Golaghat in W.C. Case No.12/2010. This appeal was MFA No.3 of 2011 Page 1 of 13 admitted by the order dated 06.01.2011 on the following substantial questions of law:
"1. Whether in view of the specific requirement of Section 3 of the W.C. Act, 1923, that personal injury/death is to be caused to a workmen in the course of employment then only the employer will be liable , the court below can in a perverse manner pass the judgment when there was no relation between the accident and employment of the deceased
2. Whether the court can ignore the documents as exhibited in the case and pass the judgment not based on the evidence on record?"
3. The facts involved in the W.C. Case No.13/2010 is that one Sunu Bhumiz @ Sonu Bhumiz was working in a Mini Truck bearing Registration No.AS-05/6463 and he had gone with some goods to be unloaded in the construction site at Barpathar. While unloading the goods, Sunu (the victim) got in contact with a live electric wire in the construction site as a result of which he sustained burn injuries and he fell on the ground and also sustained injuries due to fall. He was shifted to the Kushal Konwar Civil Hospital, Golaghat. However, he succumbed to his injuries. In this regard, the Barpathar Police U.D. Case No. 06/2009 dated 23.07.2009 was registered. His father, Bimal Bhumiz @ Milan Bhumiz has filed the claim petition before the learned Commissioner, Workmen's Compensation, Golaghat, by projecting that the monthly salary of the deceased was Rs.8,000/- per month excluding daily allowances and that at the time of his death the deceased was 20 years old leaving behind him the MFA No.3 of 2011 Page 2 of 13 dependants i.e. his father and minor brother. The claim for compensation was for a sum of Rs.9,52,000/-.
4. The opposite party No.1 being the owner of the truck had admitted that the deceased was working under him and that the vehicle was plying with valid documents and insurance policy. The appellant had filed their written statement, stating that the deceased was not a workman and that his death had not occasioned in course of or out of employment connected with the insured vehicle. In support of the claim, the claimant had examined himself as CW.1, and exhibited the following documents:
Exhibit.1- the certified copy of the final report of the accident;
Exhibit.2- salary certificate; and Exhibit.3- copy of the post-mortem report.
The said witness was cross-examined and discharged. The appellant, who was the opposite party No.2 in the said case had examined their investigator as DW.1.
5. In course of argument, the learned Commissioner had formulated three issues as follows:
"Issue No.1: whether there is any cause of action in this claim petition?
Issue No.2: Whether the deceased was a workman under the provisions of the Workmen's Compensation Act, 1923?
Issue No.3: Whether the claimant is entitled to get compensation under the provisions of the W.C. Act, 1923? If so, who is liable to pay compensation and to what extent?"MFA No.3 of 2011 Page 3 of 13
6. All the issues were decided together. Accepting the evidence of CW.1 and the documents proved by the said witness, the learned Commissioner had held that there was a cause of action for the claim and the issue No.1 was decided in favour of the claimant. As regards, issue No.2, the learned Commissioner relied on the provisions of Section 2(n)(c) of the Workmen's Compensation Act, 1923 has included that loading and unloading labour of a motor vehicle within the definition of 'workman' and accordingly, the issue No.2 was decided in the affirmative in favour of the claimant. In respect of issue No.3, on the basis of the evidence on record, the learned Commissioner had arrived at a finding that the deceased was a workman, which included the loading and unloading labour of the motor vehicle, and that the accident had occurred in course of his employment.
7. In view of the Exhibits No. 1,2 & 3 exhibited by the CW.1, it was held that the claimant had succeed to prove his case to the satisfaction of the learned Commissioner by holding that to succeed in a claim petition under the Workmen's Compensation Act, the claimant is required to prove the existence of four conditions:- i) there must be personal injury to the workman, ii) personal injury must occur in course of and out of his employment ; iii) the accident must occur in course of and out of his employment, and iv) injury must have resulted either in the death of the workman or his partial or total disablement. The learned Commissioner held that all the four conditions were fulfilled in the present case and accordingly, the claimant was held to be entitled to compensation, which was computed as below:
50% of Rs.4,000/- X 224 (relevant factor for 20 years old) =Rs.4,48,000/-MFA No.3 of 2011 Page 4 of 13
8. The claimant was further held to be entitled to funeral expenses for a sum of Rs.2,500/- as per section 4(4) of the Workmen's Compensation Act, 1923 and the claimant was held to be entitled to simple interest @ 9% per annum on the amount of compensation from the date of filing of the petition till the date of realization. The appellant was directed to make the payment within 30 days from the date of order.
9. The learned counsel for the appellant has submitted that the appellant is disputing the very fact that the accident had occasioned in connection with any activity, work or employment related to the insured vehicle at the time of his accident and death. It is submitted that the victim was not employed in the vehicle and therefore, as the time when the accident occurred, such accident did not take place either in course of employment or out of his employment. In this regard, the learned counsel for the appellant had relied on the true copy of the final report of the Barpathar PS Case No.06/2009 dated 23.07.2009 (Exhibit.1). The relevant English translation version of the said report as provided by the appellant in the Memo of Appeal is quoted below:
"......During investigation after visiting site various witnesses were asked to give statements and in presence of witnesses the dead body of Sunu Bhumiz who died of electrocution doing "Surathal" by Sri Dipu Deka, Executive Magistrate of Dhansiri, the body was sent for postmortem to Kushal Konwar Hospital of Golaghat. And the report of postmortem was collected. The copy of postmortem report is enclosed herewith.
"The cause of death in my opinion is due to shock and from injuries as a result of electrocution".
Sd/Dr.Mohal Saikia M & H.O. K.K.Civil Hospital, Golaghat"
MFA No.3 of 2011 Page 5 of 1310. The learned counsel for the appellant further relied on the extract copy of the G.D. Entry No.567 of Borpathar PS. The English translation of the said entry, as provided by the appellant as Annexure to the Memo of Appeal is to the effect that - "Presiding Officer of Barpathar Nagar Committee Sri Ratul Chandra Pathak intimated through an ejahar that today in the morning while working at the site of Contractor of Barpathar Committee a worker Sunu Bhumiz S/O Sri Milan Bhumiz died of electrocution. Even though there is no FIR, in the current year cases of the police station, one case No.06/2009 dated 23.07.2009 is registered and S.I (P) L.K. Das is entrusted to do the investigation."
11. The learned counsel for the appellant has further relied on the certificate issued by the Govt. Gaon Burah/ Village Pradhan on 23.08.2009 who had certified that the deceased had died due to shock of electrical line when he was working under the Town Committee and died on 23.07.2009. It is submitted that the GD Entry as well as the certificate of the Village Pradhan, although were not exhibited, but reference to the said documents were found in the evidence of DW.1.
12. It is further submitted that while the appellant did not dispute as to whether the deceased was working as an employee of the respondent No.3, as per the evidence of the claimant (CW.1), at the time of his death he was not engaged in the vehicle involved in the accident. It is submitted that the Mini Truck bearing Registration No.AS-05/6463 was no way connected with the accident of the of the deceased. It is submitted that as the documentary evidence in the form of final report would prevail over the oral evidence, which is contrary to the exhibited documents. The documents available MFA No.3 of 2011 Page 6 of 13 showed that the deceased was working with the Contractor in the construction site.
13. The learned counsel for the appellant has relied on the case of Malikarjuna G. Hiremath Vs. Branch Manager, The Oriental Insurance Co. Ltd. and another, (2009) 13 SCC 405, wherein the Hon'ble Supreme Court held that there must be some casual connection between the death of the workman and his employment. In the opinion of this Court , the accident which had lead to death of the workman must be proved to be an accident which had taken place in course of the employment and out of employment. In the absence of the reference of the insured truck in question in the Final Report (Exhibit.1), the findings recorded by the learned Commissioner on issue No.2 cannot be upheld and the said finding is set aside. Resultantly, the decision of the learned Commissioner on issues No.1 & 3 is also not sustainable.
14. At the outset, this Court is of the view that as the evidence of DW.1 cannot be said to be of any help to the appellant, as the DW.1 has projected himself to be the investigator. The appointment of the investigator is neither proved in his evidence nor it is certified by any competent authority of the appellant. Although mention is made in paragraph-13 of the written statement of the appellant that the appellant had appointed an experienced investigator, but at the time of filing such written statement, such investigation report was not available and the same was not filed. The Investigator (DW.1) did not exhibit any document other than his own report. That report is not a document by which any presumption can be drawn by this Court without referring to any other records. As his appointment has not been proved, the evidence of DW.1 cannot be relied upon. The MFA No.3 of 2011 Page 7 of 13 investigator's report which is marked as Exhibit-A is stated to be the remarks of the investigation made by DW.1. No documentary proof as to the authenticity of the remarks of the said report has been tendered.
15. In the opinion of this Court, if the basis or manner of the investigation was not proved, a mere opinion of the DW.1 cannot be said to be a proof of the contents of his report (Exhibit-A). Therefore, a mere reference to the remarks in the investigation report cannot be said to be an conclusive evidence of its contents without support of any document. Moreover, this report of the investigator was not brought on record in compliance of the provisions of Rule 21 of the Workmen's Compensation Act, 1923. The said Rule is quoted here-in-below:
"21. Venue of proceedings and transfer.-
(1) Where any matter is under this Act to be done by or before a Commissioner, the same shall, subject to the provisions of this Act and to any rules made hereunder, be done by or before a Commissioner for the area in which the accident took place which resulted in the injury: Provided that, where the workman is the master of a ship or a seaman, any such matter may be done by or before a Commissioner for the area in which the owner or agent of the ship resides or carries on business.
(2) If a Commissioner is satisfied that any matter arising out of any proceedings pending before him can be more conveniently dealt with by any other Commissioner, whether in the same State or not, he may subject to rules made under this Act, order such matter to be transferred to such other Commissioner either for report or for disposal, and, if he does so, shall forthwith transmit to such other Commissioner all documents relevant for the decision of such matter and, where the matter is transferred for disposal, shall also transmit in the prescribed manner any money remaining in his hands or invested by him for the benefit of any party to the proceedings: Provided that the Commissioner shall not, where any party to the proceedings MFA No.3 of 2011 Page 8 of 13 has appeared before him, make any order of transfer relating to the distribution among dependants of a lump sum without giving such party an opportunity of being heard:
Provided further that no matter other than a matter relating to the actual payment to a workman or the distribution among dependants of a lump sum shall be transferred for disposal under this sub- section to a Commissioner in the same State save with the previous sanction of the State Government or to a Commissioner in another State save with the previous sanction of2 the State Government of that State, unless all the parties to the proceedings agree to the transfer.
(3) The commissioner to whom any matter is so transferred shall, subject to rules made under this Act, inquire thereinto and, if the matter was transferred for report, return his report thereon or, if the matter was transferred for disposal, continue the proceedings as if they had originally commenced before him.
(4) On receipt of a report from a Commissioner to whom any matter has been transferred for report under sub-
section (2), the Commissioner by whom it was referred shall decide the matter referred in conformity with such report.
(5) The State Government may transfer any matter from any Commissioner appointed by it to any other commissioner appointed by it."
Therefore, the investigation report (Exhibit.A), which was produced for the first time by tendering it with the evidence of the DW.1, in that manner, the claimant did not have reasonable opportunity to controvert the same.
16. In the absence of any certificate by the appellant that the witness , namely, Mandal Gogoi was an investigator of the appellant, the evidence cannot be considered as the evidence of the appellant. His relationship with the appellant is not proved. As per the provisions of Order XVIII Rule 3(A) a party in the case must lead his evidence and, as such, only if it is proved that the DW.1, Mandal MFA No.3 of 2011 Page 9 of 13 Gogoi was a service provider of the appellant, his evidence could have been admissible as a supporting evidence. However, in the present case, the appellant was not represented by any of their authorized person to give evidence, as such, this Court is not inclined accept the evidence of Mandal Gogoi as am admissible evidence towards conclusive proof of the contents of his report (Exhibit.A) and therefore, this evidence is discarded by this Court.
17. Insofar as the entry of Exhibit.1 is concerned, which is the Final Report of Barpathar PS Case No.06/2009 dated 23.07.2009, its contents show that the Executive Office of Borpathar Town Committee by an ejahar had informed the police that a workman at the site of Barpathar Town Committee namely, Sunu Bhumiz had died by electrocution while working in the morning, but there was no reference to the Mini Truck bearing Registration No. AS-05/6463 in the said final report. The relationship between the deceased and the alleged motor vehicle was not provided in the said Final Report. Therefore, in the absence of a link between the insured vehicle and the proximity of the cause of death, the entries made in Exhibit-2 i.e., the employer and salary certificate is not reliable. Because the employer /the respondent No.2 herein did not appear before the learned Commissioner as a witness. Although the respondent No.2 had appeared and filed their written statement before the learned Commissioner, but he did not come forward to give his evidence. Unless, author of the salary certificate is examined, this Court is not inclined to accept the Exhibit-2 as a document having some evidentiary value which runs counter to the contents of Exhibit-1 i.e. the certified copy of the final report submitted by the concerned police. Although the appellant has now produced the certified copy of GD Entry No.567/2009 and the certificate of Village Pradhan as MFA No.3 of 2011 Page 10 of 13 Annexure -4 & 5 to this memo of appeal, however, as these documents has not been placed with an application for admitting additional evidence, as envisaged under the provisions of Order XLI Rule 27 CPC, this Court cannot accept the contents of the said new document(s) produced for the first time in appeal.
18. In this regard, reference can be made to the provisions of Rule 67 of Chapter 9 under para-6 of the Gauhati High Court Rules for appeal under Workmen's Compensation Act, which inter-alia provides that the Registrar of this Court as well as the parties and the legal agents shall endeavour to exclude from the paper book or documents not admitted in evidence, in the paper book as per Note- 2 thereof. Therefore, since the said two documents are not admitted in evidence, this Court is not inclined to accept the same on record.
19. In the case of Golla Rajanna Vs. Divisional Manager, 2017 (1) SCC 45, the Hon'ble Supreme Court of India had held that the Commissioner, Workmen's Compensation is the last authority on facts. In that view of the matter, this Court, sitting in appeal, has no jurisdiction to accept any documents which were not filed in evidence before the Commissioner for the purpose of deciding an issue in this appeal.
20. However, the contents of Exhibit-1 ( police report ) shows that the accident occurred while the deceased was working at the site of the contractor and there is no reference to the vehicle involved. The nexus or proximity to the cause of death cannot be attributed to the employment of the deceased in the vehicle. Therefore, the inevitable conclusion of this Court is that the appellant has succeeded to disprove that the deceased son of the respondent No.1 had suffered any accident in course of or out of his employment in MFA No.3 of 2011 Page 11 of 13 the insured vehicle. Therefore, based on the contents of Exhibit.1 i.e. Final Report of the police, this Court is constrained to hold that the relevant issue No.2 was incorrectly decided by the learned Commissioner.
21. Moreover, "loading and unloading labour" is not found to be covered by the definition of 'workman' as provided in Section 2(n) of the Act. In fact, there is no reference to Section 2(n)(c) in the Workmen's Compensation Act, 1923, but Section 2(n)(ia)(c) mentions about person recruited as driver, helper, mechanic, cleaner or any other capacity in connection with the motor vehicle. The words "any other capacity" cannot mean a "loading and unloading labour". Under the principles of ejusdem genesis, where particular words are followed by general words, the general words "or in any other capacity" are to be construed as with those like "helper, mechanic, driver, cleaner", but cannot include a 'loading and unloading labour' who has no relation with the vehicle. Therefore, the decision on issue No.2 is erroneous and not sustainable in the eye of law.
22. In view of the discussion above, it is held that the deceased late Sunu Bhumiz @ Sonu Bhumiz did not die as a workman of vehicle bearing Registration No. AS-05/6463, but he had died in course of his employment as a workman connected with the contractor at the site of work as a "loading and unloading labour".
23. As a result, this appeal stands allowed and the impugned judgment and order dated 19.10.2010, passed by the learned Commissioner, Workmen's Compensation, Golaghat in W.C. Case No.12/2010, is hereby set aside.
MFA No.3 of 2011 Page 12 of 1324. The appellant shall be permitted to recover the amount, if any, deposited before the learned Commissioner, Workmen's Compensation, Golaghat, pursuant to the award.
25. In view of the fact that a person has lost his life in course of his employment allegedly under the Barpathar Town Committee/ Contractor, it would be open to the claimant/ respondent No.1 herein to seek proper remedy if so advised. As the respondents No.1 & 2 are absent, let a copy of this judgment be sent by the Registry of this Court to their registered address. It would be open for the respondents No.1 & 2 to file appropriate claim petition within the outer period of 3(three) months from the date of receipt of the copy of this judgment from this Registry. If such a claim is filed, the respondents No.1 & 2 shall be permitted to take the benefit of Section 14 of the Limitation Act, 1963, for exclusion of the time spent in the present litigation.
26. Send back the LCR forthwith.
JUDGE MKS/ MFA No.3 of 2011 Page 13 of 13