Gauhati High Court
M/S Oriental Insurance Co. Ltd vs Gita Rani Roy & Ors on 16 September, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: MFA 88/2005
1. M/s Oriental Insurance Co. Ltd.,
Having its registered Office at-
Oriental House,
A-25/27 Asaf Ali Road, New Delhi-110002
With one of its Regional Office at-
G.S. Road, Ulubari,
Guwahati- 781007,
Represented by its Regional Manager.
...... Appellant
-Versus-
1. Smti. Gita Rani Roy,
W/o Late Pradip Roy,
R/o Village- Patharghat,
P.O. & Dist. Kokrajhar,
Assam.
2. Struck off
..... Respondents
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellant : Mr. A Ahmed
Advocate
For the Respondents : None Appears
Page 1 of 8
MFA 88/2005
MC 3700/2005
Date of Hearing : 16.09.2015
Date of delivery of
Judgment and Order : 16.09.2015
JUDGMENT AND ORDER (ORAL )
Insurance company, as appellant, has preferred this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') challenging the judgment and award dated 09.08.2005 passed by the Commissioner, Workmen's Compensation, Dhubri in W.C. Case No. 11/2003 thereby assessing compensation at Rs. 3,94,120/- and interest of Rs. 86,706/- and thereby directing the insurance company to make payment within a period of 30 days from the date of award failing which further interest at the rate of 9% per annum was awarded.
2. The insurance company deposited the awarded amount of Rs. 3,94,120/- with the jurisdictional Tribunal and thereafter preferred the appeal before this court. The Division Bench of this Court by order dated 10.02.2006 framed two substantial questions of law as below:-
(1) Whether in view of the First Information Report filed by the wife Smti Geeta Rani Roy is claimant?
(2) Whether the deceased can be held to be a 'workman' for
getting the compensation under the Workmen's
Compensation Act?
Page 2 of 8
MFA 88/2005
MC 3700/2005
3. I have heard Mr. A Ahmed, learned counsel for the appellant. None appears for the claimant respondent although notice has been duly served.
4. The brief facts involved in this case is that one Pradip Roy was employed as labourer under the owner Adhir Chandra Das in respect of truck bearing registration No. ASG-3935. On 28.02.2003 at about 5.00 pm when the vehicle was moving from Bismury towards Kokrajhar, it met with an accident at Shamgaon on P.W.D. road and thereupon Pradip Roy fell from the vehicle and died at Kokrajhar R.N.B. Civil Hospital. His wife Gita Rani Roy instituted the claim case before the jurisdictional W.C. Commissioner claiming compensation of Rs.
6,00,000/-. According to her, deceased was earning Rs. 4,100/- under the owner Adhir Chandra Das and he was 30 years of age at the time of accident. An F.I.R. was lodged with Kokrajhar Police Station in regard to the accident and Kokrajhar P.S. Case No. 17/2003 under Section 279/304(A) of IPC was registered thereupon.
5. Upon receipt of summons, the opposite party No. 1 owner as well as O.P. No. 2 insurance company appeared and submitted their respective written statement. In paragraph 7 of the written statement opposite party No. 1 owner specifically admitted that the deceased Pradip Roy was a labourer engaged by him in the truck and that he was getting daily wage of Rs. 160/-. The insurance company, on the other hand, in paragraph 8 of the written statement pleaded that deceased was not a workman as defined under the workmen's Compensation Act and so there was no question of making payment of compensation to the claimant. Upon consideration of these two written Page 3 of 8 MFA 88/2005 MC 3700/2005 statements and the claim petition, the W.C. Commissioner framed the following 5 (five) issues for determination and asked the parties to lead their respective cases.
1. Whether the Court has jurisdiction to entertain this claim case?
2. Is there any cause of action to entertain the claim?
3. Whether the claim petition is maintainable it its present form?
4. Whether the O.P. are liable to pay compensation as claimed by the claimant petitioner?
5. If yes, what relief is the claimant petitioner is entitled to?
6. Claimant examined 3 witnesses including herself and also adduced documentary evidence. The opposite parties did not lead any evidence and did not produce any document. Considering the evidence led by the parties the learned W.C. Commissioner decided all the issues in favour of the claimant holding that the court has jurisdiction to entertain the claim, that there is cause of action for the claim, that the claim was maintainable in the present form and that that the opposite parties are liable to make payment to the claimant. The W.C. Commissioner while deciding issue No. 4 held that the claimant submitted all relevant documents such as post-mortem report, copy of F.I.R., copy of insurance policy pursuant to her claim and that the W.C. Court was convinced that Pradip Roy was labourer of the truck and that he died while he was on duty. Thus, deciding issue No. 4, the W.C. Commissioner proceeded to ascertain the just compensation and accordingly held that Rs. 3,94,120/- would be the appropriate compensation under Section 4(1)(a) of the Act. The W.C. Commissioner also directed the insurance company to make payment of interest Page 4 of 8 MFA 88/2005 MC 3700/2005 to the tune of Rs. 86,706/- upon the awarded amount within a period of 30 days from the date of the award failing which further interest of 9% per annum was also ordered. It appears that after passing of the judgment and award, the insurance company deposited the principal compensation amount to the tune of Rs. 3,94,120/- but did not deposit the interest part. The jurisdictional Tribunal thereafter by an order dated 27.12.2005 disbursed the principal amount amounting to Rs. 3,92,287/- to the claimant and thus, the amount left for payment out of the awarded amount was only Rs. 86,706/-. Mr. A Ahmed, learned counsel for the insurance company appearing for the appellant, argues that the deceased was never a workman of the insured and so, the learned W.C. Commissioner committed error in allowing compensation under the W.C. Act. He has drawn attention of the Court to Ext. 3 which is the F.I.R. in Kokrajhar P.S. Case No. 17/2003 to show that even in the F.I.R. the deceased was described to be a businessman and not a workman under the insured. According to him, once this F.I.R. was brought on record, the W.C. Commissioner was duty bound to consider the content thereof and accordingly it would have been cleared that the deceased was never a workman under the insured.
7. An appeal under Section 30 of the Workmen's Compensation Act, 1923, can be entertained only if a substantial question of law is made out. The pre- condition for exercise of appellate power is framing of a substantial question of law. Any finding or any error of law not amounting to substantial question of law cannot be the basis for entertaining an appeal under Section 30 of the Workmen's Compensation Act. In the case in hand, the two substantial questions Page 5 of 8 MFA 88/2005 MC 3700/2005 of law that were framed by this court have been cited above. The first substantial question of law is the fact as to whether Smti. Gita Rani Roy is the claimant and she is the informant in the concerned police case. Obviously, it is a finding of fact and Ext. 3 shows that Gita Rani Roy was the informant in concerned Kokrajhar P.S. Case No. 17/2003 and she is the claimant in the present case. If Gita Rani Roy was the first informant, there is no bar for her being a claimant in W.C. case. Under such circumstances, apart from such question being a question of fact, it is not clear as to how it is a purpose of deciding of fact. The first substantial question of law is no substantial question of law at all and accordingly, it needs no adjudication.
8. The second substantial question of law is also as to status of the deceased as workman. The pleaded case of the claimant in the claim petition is that deceased was a labourer with respect to truck bearing registration No. ASG- 3935 belonging to opposite party No. 1, Adhir Chandra Das. This Adhir Chandra Das appeared and submitted written statement and in paragraph 7 of the written statement, he has pleaded that deceased was a labourer with respect to his truck and that he was being paid Rs. 160/- as daily wage. The present appellant is not supposed to know as to whether deceased was a workman under the opposite party No. 1 owner or not. But the opposite party No. 1 owner being the employer is definitely aware as to whether the deceased was his employee or not. Once he comes forward and files a written statement denying his liability but disclosing that deceased was working as a labourer under him at a daily wage of Rs. 160/-, the claim made in the claim petition that deceased was workman under O.P. No. Page 6 of 8 MFA 88/2005 MC 3700/2005 1, becomes admitted. Considering the spirit of the provision of Order V Rule 8 of the Code of Civil Procedure as well as provision of the Section 58 of the Evidence Act, once a fact is admitted by the opposite party No. 1, the claimant has no responsibility to lead further evidence to prove the same. Here in this case, there were some materials before the court to come to a finding that deceased was a workman under the O.P. No. 1 owner. The appellate court under section 30 of the W.C. Act, 1923, definitely cannot question the sufficiency of evidence and cannot appreciate evidence to find fault with the award passed by the W.C. Commissioner. Proceeding before W.C. Commissioner, apparently is a summary procedure and the same is done on the basis of prima facie satisfaction of the materials placed. The appellant insurance company though challenged in paragraph 8 of the written statement that deceased was not a workman under the owner, neither adduced any evidence to establish its claim nor did it put any question to the claimant as to the status of the deceased as workman. The appellant, therefore, did not lay any foundation for raising the question that deceased was not a workman under the insured.
9. Now the question arises as to whether status of a party can be called as a substantial question of law at all. In the case of Raja Durga Singh of Solan vs. Tholu and others reported in AIR 1963 SC 361, the Hon'ble Supreme Court considered a similar question as to status of land lord and tenant and held that status of defendant as tenant though denied by the plaintiff is really a finding of fact and it cannot be set aside in second appeal. This is because, an interference under second appeal is made only when the substantial question of law is made Page 7 of 8 MFA 88/2005 MC 3700/2005 out. The status of the deceased as workman, therefore, being undoubtedly a finding of fact cannot form a substantial question of law unless it is averred and argued that such finding is perverse. Incidentally, it is not the pleading in the present case. The learned counsel for the appellant has not argued that such finding is perverse in view of the fact that there is some material in support of the finding arrived at by the learned W.C. Commissioner. As stated above, claimant pleaded that deceased was a workman and the employer, admitting this claim specifically, pleaded that the deceased was being paid Rs. 160/- as daily wage for such employment. The W.C. Commissioner, therefore, had material before him to arrive at a finding that deceased was a workman under the vehicle owner. This finding of the W.C. Commissioner, thus, cannot be held to be perverse by any stretch of imagination. In the absence of argument that such finding is perverse, the aforesaid substantial question of law has to be decided in favour of the claimant holding that the deceased was a workman as found by the W.C. Commissioner.
10. The appeal, therefore, is devoid of any merit. It is accordingly, dismissed. The appellant shall deposit the unpaid amount with interest with the jurisdictional W.C. Commissioner and upon such deposit being made, the W.C. Commissioner shall issue notice upon the claimant to withdraw the amount.
JUDGE BiswaS Page 8 of 8 MFA 88/2005 MC 3700/2005