Madhya Pradesh High Court
Smt. Dulari Singh And Ors. vs Tribhuvan Murari Dubey And Anr. on 7 February, 2008
Bench: Arun Mishra, S.A. Naqvi
ORDER
1. The appeal has been preferred by the claimants aggrieved by dismissal of their application filed under Section 33 of the Workmen's Compensation Act, 1923 before the Commissioner for Workmen Compensation (Labour Court) Satna. The application has been dismissed as per order dated 14.9.2005 passed in case No. 17/04 WC Act, Fatal.
2. The claimants preferred claim petition claiming compensation on account of death of Santosh Singh, aged 27 years, who was a driver working with Tribhuvan Murari Dubey, he used to drive marshal jeep, owned by T.M. Dubey and insured with Oriental Insurance co. ltd. He used to ply the vehicle on Chitrakoot-Maihar occasionally as per direction of the owner on 3.4.2004 deceased had gone to Jaleshwar along with the owner and thereafter at his direction went to Amarkantak and Chitrakoot taking certain relatives of the deceased. The dead body of the deceased was found near Semrabal river on 4.4.2004 within the area of P.S. Kothi, Satna. The jeep was found abandoned near K.P. college at Rewa. The vehicle was seized on 13.4.2004 from Rewa. Offence was registered against the unknown accused persons at crime No. 27/04. It was submitted that deceased used to earn Rs.2,000/-per month by way of salary and Rs.80/-by way of allowance.
3. The owner remained ex-parte.
4. The insurer in the reply contended that deceased was not holding the driving licence. The vehicle was being used for carrying the passengers for hire or reward, as such there was violation of terms & conditions of the policy. The death was not in the course of employment. The jeep was seized from a different place.
5. The Commissioner for Workmen Compensation has found that it has not been established that deceased died during the course of the employment.
6. Shri Avinash Jargar, Learned Counsel for the appellants, has submitted that death was arising out of and in the course of employment. The facts deposed by the widow and father of the deceased have not been rebutted by entering in the witness box or by the insurer, thus, ought to have been accepted, the dismissal of the claim petition is improper.
7. Shri Rakesh Jain, Learned Counsel for the insurer, has submitted that considering the evidence of the widow and father of deceased the tribunal has assessed the evidential value and has discarded the statement, as such no case for interference in the appeal is made out as no substantial question of law arises.
8. The main question for consideration is whether the finding recorded by the tribunal that deceased did not die during the course of employment is perverse ? The appeal has been admitted on the following substantial question of law:
Whether in the facts and circumstances of the case, the Commissioner for Workmen Compensation was justified in dismissing the claim petition of the appellants holding therein that deceased did not die during the course of employment ?
9. We find on record that the claimants have submitted that deceased was in the employment and had taken the vehicle to Chitrakoot and Amarkantak at the direction of the owner; the owner did not controvert the aforesaid by filing of the written statement and by entering in the witness box. The tribunal has wrongly drawn adverse inference against the claimants for not examining the owner, it was not for the claimants to examine the owner, in case owner was interested in rebutting the evidence, it was for owner to enter in the witness box or for the insurer to examine the owner in rebuttal. Smt. Dulari Singh, the widow of the deceased, has clearly stated that deceased was in the employment of T.M. Dubey, he used to ply marshal jeep and used to draw salary of Rs.2,000/-per month and allowance of Rs.70-80/-per day. Ramratan, father of the deceased, has also stated that deceased was the driver of T.M. Dubey and at the direction of owner he had taken the vehicle on 3.4.2004. The dead body was found at the different place. The deceased was residing at village Gorela, Bilaspur, his dead body was found near Semrabal river in the district of Satna, thus, it is apparent that from the statement that deceased had taken the jeep towards Chitrakoot and thereafter his dead body was found; death arose out of and in the course of employment. There is absolutely nothing to disbelieve the version of the aforesaid witnesses that jeep was taken at the direction of the owner, jeep was found at a different place at Rewa and dead body was found at a different place at Satna, thus, it appears that murder was committed of the deceased in the course of employment, the death was clearly arising out of and in the course of his employment as held by the Apex Court in Smt. Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr. 2000 AIR SCW 1579 and by this Court in similar circumstances in Oriental Insurance Co. Ltd. v. Sheela Bai Jain and Anr. and in Smt. Laxmi and Ors. v. Jai Karan Prasad Shukla and Anr. 2007 (3) MPHT 421. In Smt. Rita Devi and Ors. v. New India Assurance Co. Ltd. and Anr. (supra) it has been held thus:
14. Applying the principleslaid down in the above cases to the facts of the in hand, wefind that the deceased, a driverof the auto rickshaw, was dutybound to have accepted thedemand of fare paying passengersto transport them to the placeof their destination. During thecourse of this duty, if thepassengers had decided to commitan act of felony of stealing theauto rickshaw and in the course of achieving the said object ofstealing the auto rickshaw, theyhad to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the autorickshaw was the object of thefelony and the murder that wascaused in the said process ofstealing the auto rickshaw isonly incidental to the act ofstealing of the auto rickshaw. Therefore, it has to be saidthat on the facts and circumstances of this case the death of the deceased (DasarathSingh) was caused accidentallyin the process of committing thetheft of the auto rickshaw.
15. Learned Counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word 'death' and the legal interpretations relied upon by us are with reference to definition of the word 'death' in Workmen's Compensation Act the same will not be applicable while interpreting the word 'Death' in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts,namely, the Motor Vehicles Act and the Workmen's Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmen's Compensation Act.
A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence, judicially accepted interpretation of the work 'death' in Workmen's Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also. "In view of the aforesaid, we have no hesitation in setting aside the order passed by the Commissioner for Workmen's Compensation dismissing the claim petition and hold that the deceased was in the employment and his death was clearly caused during the course of the employment.
10. Coming to the question of quantum of compensation to be awarded, the widow has stated that deceased used to draw the salary of Rs.2,000/-per month and allowance of Rs.70-80/-per day. It would be reasonable to assess his income at Rs.3,000/ per month. Taking 50% i.e. Rs.1,500/-as per Section 4 of the Workmen's Compensation Act, 1923 so as to arrive at the compensation the relevant factor is 213.57. Thus, the compensation comes to (1500 x 213.57) = Rs.3,20,355/-(Rs. Three Lacs Twenty Thousand Three Hundred Fifty Five Only). The compensation to carry interest at the rate of 12% per annum to be payable after one month from the date of accident.
11. Coming to the liability of the insurer as there is nothing on record to show that there was violation of the policy, the finding as to violation of policy is also not proper. Merely by the fact that the father of the deceased was unable to state the names of the persons taken in the jeep, it could not be inferred that jeep was being plied for hire or reward, the burden to prove the breach of the policy was upon the insurer. Ramesh (P.W.3) has also not stated that vehicle used to be plied for carrying passengers for hire or reward, he has stated that vehicle was used to be plied for personal use. There is nothing in the statement of Deepak (P.W.4) also to infer that there was violation of terms & conditions of the policy. The statement of Sunil Dharmadhikari (NAW-1) examined on behalf of insurer is not based on personal knowledge, thus, is of no avail so as to come to the conclusion that vehicle used to be plied for hire or reward.
12. Resultantly, the appeal is allowed to the aforesaid extent. The compensation of Rs.3,20,355/-(Rs. Three Lacs Twenty Thousand Three Hundred Fifty Five Only) is awarded to the claimants. The compensation to carry interest at the rate of 12% per annum to be payable after one month from the date of accident. No costs.