Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Meena Ram & Others on 19 September, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 453 of 2007.
Decided on: 19th September, 2016 Oriental Insurance Company Ltd. .......Appellant.
.
Versus Meena Ram & Others .......Respondents.
Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1Yes..
of For the appellant : Mr. Ashwani K. Sharma, Senior Advocate with Mr. Ishan rt Thakur, Advocate.
For the Respondents : Mr. R.S. Gautam, Advocate for respondents No.1 and 2.
Mr. B.M. Chauhan, Advocate for respondent No.4.
None for respondent No.3.
Dharam Chand Chaudhary, J. (oral).
Order dated 25.5.2007 passed by learned Commissioner under Workmen Compensation Act, Nahan, District Sirmaur, H.P., in case No.7/2003 is under challenge in this appeal. Respondents No.1 and 2 herein are the claimants. Respondent No.3 is owner 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 2of the ill-fated bus bearing registration No.HP 16-1051 whereas the appellant herein is the insurer.
2. One Ravinder Kumar son of respondents-
.
claimants was employed as driver by the third respondent with ill-fated bus bearing registration No.HP16-1051. On 13.10.1995, the bus met with an accident near village Garari, Sub-Tehsil Nohra, District of Sirmaur. Deceased Ravinder Kumar, sustained grievous injuries in the accident and as a result rt thereof, he died later on.
3. The deceased at the time of his death in the accident was 25 years of age and allegedly getting per month as monthly wages `3550/-
including, `35/- paid to him by way of daily allowance. Initially, it is The New India Assurance Company, respondent No.4 herein was impleaded as insurer in the petition. All respondents failed to put in appearance and as such were proceeded against exparte. Consequently, exparte award came to be passed on 27.3.2001 and a sum of `2,15,280/- with ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 3 interest @12% per annum from the date of accident was awarded. Respondent No.4, having come to know about the exparte award, preferred an .
application under Order 9 Rule 13 of the Code of Civil Procedure (wrongly mentioned as review petition) with a prayer to set aside the exparte award on the ground that the bus involved in the accident was not of insured with it. During the course of proceedings in the application filed by respondent No.4, it transpired rt that the vehicle was insured with Oriental Insurance Company, the appellant herein.
4. The owner of the bus respondent No.3 was summoned by learned Commissioner, who made the statement on oath on 12th January, 2004 that he is the owner of the ill-fated bus and that driver of the bus Shri Ravinder Kumar has died in the accident. He has further stated that the vehicle was insured with Oriental Insurance Company Limited, Solan Branch.
The appellant as such was added as respondent No.2 in the claim petition. Exparte award dated 27.3.2001 ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 4 was set aside. After impleading the appellant herein as one of the respondents and taking on record the version of the opposite party including the insurer .
respondent No.2, following issue were framed:-
1. Whether deceased Ravinder Kumar died in an accident which took place on 13.10.1995 at about 7.00 pm near village Garari, Sub-Tehsil Nohra, District Sirmaur, of H.P., involving Bus No. HP16-1051 owned by respondent No.1? ...OPP
2. Whether deceased Ravinder Kumar was a rt workman under the employment of the respondent No.1 and died during the course of employment? ...OPP
3. Whether the claimants have no locus standi to file the present petitioner?
...OPR2
4. Whether the vehicle involved in the accident was being plied in violation of terms and conditions of the Insurance Policy? ....OPR2
5. Whether the claimants/petitioners are entitled to compensation, if so to what amount and from whom? ....OPP
6. Relief.::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 5
5. Learned Commissioner below, having gone through the pleadings of the parties and on appreciation of the evidence available on record has .
taken the age of deceased driver as 25 years at the time of accident whereas his monthly wages as `3550/-. By taking his income for the purpose of determination of the compensation as `1750 has of applied the relevant factor i.e. 216.91 and awarded a sum of `3,79,592/- as compensation to the claimants rt with interest at the rate of 12% per annum from 12.12.1995 i.e. after one month of the date of accident till the payment of the compensation is made to claimants. The penalty i.e. 10% of the awarded amount `37,969/- was also imposed and ordered to be paid by the insured-respondent No.1.
6. Oriental Insurance Company, second respondent, has assailed the award in this Court on the grounds inter alia that the income of the deceased could have not been taken as `3500/- per month and rather `2000/- per month. In all 50% i.e. ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 6 `1000/- per month was required to be taken for assessing the compensation payable to the petitioners-claimants. Therefore, the amount of .
compensation, if any, payable comes to `2,16,910/-
and not `3,79,592/-. Also that the interest from the date as awarded by learned Commissioner below could have not been awarded against respondent-
of insurer as the respondent-insurer was impleaded as party in the year 2004. Also that review of the exparte rt award dated 27.3.2001 was not legally permissible under Section 6 of the Act and the said award was wrongly set aside by learned Commissioner below.
7. The appeal has been admitted on the following substantial questions of law:
1. Whether the power of review of the Orders passed by the Commissioner granting compensation under Section 4(1)(a), (b) &
(c) of Workmen's Compensation Act can be exercised under any circumstances?
2. Whether the impugned order which suffers from patent illegality in as much as time barred claim filed by the claimants was ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 7 entertained, is sustainable in the eyes of law?
3. Whether learned Commissioner committed grave error in taking monthly wages of .
deceased at Rs.3500/- when the owner had categorically asserted that he paid wages amounting to Rs.2,000/- per month to his deceased driver?
of
8. Mr. Ashwani Sharma, learned Senior Advocate assisted by Mr. Ishan Thakur, Advocate has rt firstly argued on substantial question No.3. While placing reliance on the judgment of the apex Court in Kerala state Electricity Board & Another versus Valsala K. and Another, (1999) 8 SCC, 254, it has been urged that in the matter of conducting proceedings in the claim petition, the provisions in the Workmen Compensation Act in force on the date of accident were required to be taken into consideration. The submissions so made by Mr. Sharma, find support from the judgment supra. It takes this Court to the Workmen Compensation Act enforced on the date of ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 8 accident. The accident had occurred on 13.10.1995, on that day Workmen Compensation Act, 1923, further amended by Act No. 30 of 1995 w.e.f. 15.9.1995 .
was inforce. Section 4(1) (a) of the Act reveals that in a case of death occurred in the accident, an amount equal to 50% of the monthly wages of the deceased workman multiplied by the relevant factor could have of been awarded as compensation. The explanation below Section 4 of the Act further reveals that rt monthly wages was to be taken as `2,000/- only irrespective of the same over and above `2,000/-.
Although the petitioners-claimants have claimed monthly wages of the deceased workman as `3500/-
per month yet the owner of the bus, respondent No.1, has come forward with the version that he was paying `2000/- as wages to the deceased per month.
9. Any how, in view of the provisions contained under Section 4 of the Act at the relevant time, the monthly wages could have not been taken beyond `2000/-. The deceased as per the evidence ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 9 available on record was 25 years of age at that time.
Therefore, taking 50% of his monthly wages i.e. `1000/-
and applying the relevant factor i.e. 216.91, the .
compensation payable in the case works out to `2,16,910/- and not `3,79,592/- as awarded by learned Commissioner below.
10. The appeal has not been admitted on any of substantial question of law qua interest, therefore, the claimants are entitled to the interest at the rate of 12% rt per annum on the awarded amount i.e. `2,16,910/-
w.e.f. 12.12.1995.
11. Now if coming to first substantial question of law, as a matter of fact, the application filed under Order 9 Rule 13 CPC with a prayer to set aside the exparte award has been wrongly nomenclatured, as review petition. So there is no question of review of the exparte award dated 27.3.2001 by learned Commissioner below. The award rather was set aside and rightly so because The New India Assurance Company was not insurer of the bus. It is rather the ::: Downloaded on - 15/04/2017 21:15:27 :::HCHP 10 Oriental Insurance Company, the appellant-second respondent, was insurer of the bus involved in the accident. Therefore, no such question of law arises for .
adjudication.
12. Now if coming to the second substantial question of law, no finding has been pressed qua this aspect of the matter.
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13. In view of what has been said hereinabove, this appeal partly succeeds and the rt same is accordingly allowed. Consequently, the respondents-claimants are awarded a sum of `2,16,910/- together with interest at the rate of 12% per annum, from 12.12.1995 till the deposit of the awarded amount. The appeal is accordingly disposed of.
(Dharam Chand Chaudhary)
September 19, 2016(ps) Judge.
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