Orissa High Court
The General Manager vs Mamata Mohanty on 5 November, 2021
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.96 of 2019
The General Manager, Sriram .... Appellant
General Insurance Company Ltd.
Mr. Adam Ali Khan, Advocate
-versus-
Mamata Mohanty .... Respondents
Mr. Pradeep Kumar Mishra, Advocate
CORAM:
MR. JUSTICE D.DASH
ORDER
05.11.2021 Order No.
6. 1. This matter is taken up through hybrid arrangement (virtual/physical mode).
2. This is an Appeal under section 30 of the Employees Compensation Act.
3. The Appellant by filing the Appeal has challenged the judgment/award dated 17.12.2018 passed by the Commissioner for Employees Compensation-cum-Divisional Labour Commissioner, Berhampur, Ganjam in E.C. Case No. 70 of 2014.
By the said judgment/award, the Commissioner having found the deceased namely, Bhagaban Mohanty, the husband of the claimant-Respondent No 1 to be a workman within the meaning of the Employees Compensation Act, 1923 under the Respondent No. 2 who happens to be owner of the Truck bearing Registration No. AP-37-V-4515 and this death having taken place in an accident in course of his employment as such Page 1 of 5 // 2 // has awarded compensation of Rs.4,19,796/- to be paid to the claimant-Respondent No.1. The Appellant being the insurer of the vehicle in question owned by the Respondent No.2 has been saddled with the liability to pay the above compensation to the Claimant-Respondent No.1.
4. Mr. Adam Ali Khan learned counsel for the Appellant inviting the attention of this Court to the grounds nos. 2 and 4 as mentioned in the Memorandum of Appeal submits that here when Respondent No. 2 arraigned in the proceeding as the employer of the deceased having stated that the deceased had never been employed by him in his truck as a Coolie and further denied that the death of the deceased had taken place in course of his employment; when there also stands no such clear, cogent and acceptable evidence in support of those facts so as to form the foundation of the award, the finding of the Commissioner on that score in favour of the Claimant- Respondent No. 1 is not sustainable.
It is further submitted that the parents of the deceased have filed an application under section 166 of the MV Act, 1988 claiming compensation on account of death of their son (deceased) in a motor accident stating that an Auto rickshaw bearing Registration No. OR07T-6186 has caused the accident wherein the death of their son had taken place and attributing rash and negligence driving to the driver of that Auto rickshaw, compensation has been claimed from the owner and insurer of the said Auto rickshaw. He submits that in that proceeding this Claimant-Respondent No. 1 has also been shown as the legal representative of the deceased as entitled to compensation. It is stated that said application being numbered as MAC No. 151 of 2018 was before the 1st MACT, Berhampur and now the same Page 2 of 5 // 3 // being transferred is before the 2nd MACT, Berhampur in MACT No. 161 of 2019. He therefore submits that when that proceeding is being pursued and this Claimant-Respondent No. 1 has not come forward to state that the facts pleaded in that proceeding are all false; the Commissioner should not have returned the finding on Issue no. 1 in favour of the Claimant- Respondent No.1. He therefore urges that the finding of the Commissioner on Issue no. 1 thus being perverse is liable to be set aside.
5. Mr. P.K. Mishra, learned counsel for the Claimant- Respondent No. 1 does not dispute the factum of pendency of the proceeding before the MACT as initiated by the parents of the deceased wherein this Claimant-Respondent No.1 is a party. He also fairly submits that due to inadvertence the pendency of that proceeding has not been brought to the notice of the Commissioner and there the claim of compensation has been made against the owner and insurer of the Auto rickshaw. He submits that the Claimant-Respondent No. 1 in her deposition while stating that the deceased was under the employment of the Respondent No.2 has also stated that the accident took place when the deceased at the time when was tying the paddy bags which had been loaded in the truck in order to prevent that those remain intact during the transportation was dashed by an Auto rickshaw and died thereof.
6. Keeping in view the submission made, the judgment/award passed by the Commissioner being gone through; it is seen that this Issue no. 1 has been answered in favour of the Claimant-Respondent No. 1 by relying upon the sole testimony of the Claimant-Respondent No.1 without taking note of the available evidence that the loading of the paddy Page 3 of 5 // 4 // bags in the vehicle at the relevant time was being done by one Rama Routa of Chandapur by engaging some labourers. When no such documentary has been tendered from the side of the Claimant-Respondent No. 1, the Commissioner has taken an adverse view for the reason that the Respondent No. 2, the so- called employer has not produced any document in support of his case that the deceased was not his employee at the relevant time. The approach is untenable. Only in the event of proof of the documents from the side of the Claimant-Respondent No. 1 tending to show the relationship between the deceased and the Respondent No. 2 in discharging the initial burden of proof, the onus would have shifted upon the Respondent No. 2 to explain away or to rebut the same. The Commissioner in my considered view has thus fallen in error by taking an adverse view on the case of the Respondent No. 2 for non-production of any document to prove that aspect in the negative. Such a course adopted by Commissioner is not sanctioned under law and therefore, said finding returned by the Commissioner on Issue no. 1 can not be sustained.
7. In that view of the matter, the judgment/award is held unsustainable. Accordingly, the judgment/award dated 17.12.2018 passed by the Commissioner for Employees Compensation, Berhampur, Ganjam in E.C. Case No. 70 of 2014 impugned in this Appeal is hereby set aside.
8. While parting, it is however observed that the Claimant-Respondent No. 1 would be at liberty to pursue the case in support of her claim of the compensation on account of the death of her husband in MACT No. 161 of 2019 pending before 2nd MACT, Berhampur and the result of this proceeding as concluded in the Appeal as also any such observations or Page 4 of 5 // 5 // expressions made herein above, would have no influence in that proceeding initiated on that application under section 166 of M.V. Act which would stand to be decided on its own merit and in accordance with law.
9. In the result, the Appeal stands allowed. The amount deposited by the Appellant-Insurer with the Commissioner for Employees Compensation-cum-Divisional Labour Commissioner, Berhampur, Ganjam in E.C. Case No. 70 of 2014 with accrued interest shall be refunded to the Appellant- Insurer.
10. The FAO stands disposed of.
Issue urgent certified copy as per rules.
(D.Dash) Judge Aksethy Page 5 of 5