Orissa High Court
National Insurance Co. Ltd. vs Y. Ramadevi And Anr. on 2 March, 1989
Equivalent citations: I(1990)ACC92
JUDGMENT S.C. Mohapatra, J.
1. Insurer is the appellant in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act')-
2. On 16.9.1984, ORG 8735, a tanker belonging to respondent No. 2, was involved in an accident resulting in the death of husband of claimant No. 1 who received fatal injuries. Claiming the deceased to the driver of the vehicle employed by respondent No. 2, claimant filed an application in form 'G' of the Rules made under the Act before the Commissioner under the Act at Berhampur. In item 3 of the form of application, it was stated as follows:
(3) The monthly income of the deceased amounts to Rs. 600/-.
3. This was received by the Commissioner on 19.3.1985. Along with the proforma application another application was filed where the claimant stated in paragraph 5 that at the time of death, the deceased was getting a monthly salary of Rs. 600/- besides daily batta. Petitioner calculated the compensation amount as Rs. 48,398.40 as per Section 4 of the Act as amended. This petition was filed being signed by her advocate who was authorised to act on the basis of a vakalatnama duly executed. On 10.4.1985, statement of the claimant was recorded by the Commissioner where she stated that the deceased was getting Rs. 600/- per month except batta which amounts to Rs. 300/-.
4. Owner and the insurer appeared and filed their respective objections. Insurer objected to the claim amongst others challenging relationship of master and servant between the insured and the deceased. Owner in his written statement stated that since 31.12.1982 there was no relationship of employer and employee for which the deceased gave a declaration that day to the effect that he received all his dues and had no further claim. As regards remuneration, owner stated that at the time the deceased was a driver he was getting the wages of Rs. 600/- and Rs. 300/- as batta as deposed to by the claimant.
5. Claimant examined herself as a witness. In her deposition recorded on 11.9.1985, she stated that the deceased was getting wages of Rs. 600/- per month besides a daily batta of Rs. 10/-. On 14.3.1986, a co-driver was examined as PW 2 in support of the claim. He stated, "Upto the date of death he was getting Rs. 600/- per month as a driver. He got batta at the rate of Rs. 10/- per day when he went on duty." On 3.4.1986. owner examined one of his employees as OPW1, who was cross-examined on 16.4.1986. While proving the declaration purported to have been given by the deceased as Exh. 8 and the certificate of insurance as Exh. A, he stated in cross- examination that the transporter-employer maintains a salary book and he cannot assign any reason why the same was not produced. Two other witnesses were examined. But the same is not material to be referred to for the purpose of this appeal, Two long memoranda of submission were filed on behalf of the petitioner and the owner which related to the question of employment only. Order -sheet reveals that after recording the evidence of the last witness, the case was posted for orders. No opportunity was given by the Commissioner to the parties to submit their arguments. Order was delivered on 5.5.1986 by the Commissioner directing insurer-appellant to pay Rs. 72,597.60 as compensation which is the grievance of the appellant.
6. Mr. P. Roy, learned Counsel for the appellant, submitted that the Commissioner has not correctly interpreted the declaration given by the deceased which clearly indicates that there was no relationship of master and servant on the date of accident. He. further submitted that in any case Rs. 300/- towards batta could not have been accepted as wages to calculate the compensation.
7. Mr. S.S. Rao, learned Counsel for the claimant and Mr. M Jain, learned Counsel for the owner, on the other hand, submitted that insurer cannot maintain this appeal. Mr. Rao submitted further that compensation awarded is based on appreciation of evidence and there is no scope for interference under Section 30 of the Act.
8. After perusal of the evidence on record when Commissioner has accepted the evidence of claimant, I am satisfied that finding of the Commissioner that the deceased was the driver of the ill-fated vehicle who sustained fatal injury on the date of accident in course of employment cannot be said to be unreasonable (Sic.) contention of Mr. S.S. Rao, learned Counsel for the claimant, to this extent has great force.
9. Mr. P. Roy, learned Counsel for the appellant, submitted that Commissioner has not taken into consideration the inconsistent statement of the claimant and clear evidence of PW 2 that Rs. 10/- was being paid as batta on the days...of the deceased going on duty. If the Commissioner would have considered this and would have come to a conclusion it would have become a question of fact. Non-consideration of a material piece of evidence which would affect the finding is a question of law. There is no reason why this statement of PW 2 would not be accepted. Thus, in view of my decision reported in Gopal Singh v. Nilamani Pradhan, 1988 ACJ 244 (Orissa), I am inclined to find that Commissioner erred in law in including Rs. 300/- in the wages. This has to be deducted.
10. Next question for consideration is whether appeal at the instance of the insurer is maintainable. Mr. S.S. Rao, learned Counsel for the claimant, relied upon my decision reported in New India Assurance Co. Ltd. v. Sankar Behera, 1988 ACJ 337 (Orissa), in support of his contention that the appeal is not maintainable. In the said case, I have held that insurer being aggrieved on account of liability having been fixed on it, appeal can be filed by the insurer. Thus, appeal by the insurer is maintainable.
11. It is, however, to be considered whether insurer can challenge the award on merits in view of the specific provision in Section 96 (2) of the Motor Vehicle Act, 1939. Normally, issurer is to confine its challenge to a claim to the grounds provided in Section 96 (2) of that Act. But in the aforesaid decision reported in New India Assurance Co. Ltd. v. Sankar Behera, 1988 ACJ 337 (Orissa), I have held that principle of Section 110-C (2-A) of that Act would be made applicable and where there is collusion between the claimant and the owner, insurer can challenge on all grounds available to the owner.
12. In Oriental Fire & Genl. Ins. Co. Ltd. v. Gauri Prasad Rath. M.A. No. 366 of 1985; decided on 25.11.1987, I have held:
Collusion is not to be readily inferred in any case. Clear proof of the same is required. However, collusion being a conduct to be inferred from proved facts, each action or inaction is to be considered. Where the owner could have led better evidence which he failed without any explanation and apparently acts which looks like a contest an inference of collusion can be drawn....
13. In the present case, the owner has made only a show of contest. Originally, he filed a petition to consider his liability as a preliminary issue since the vehicle was insured. Thereafter, he filed his objection. He was, although proceeding half-heartedly, putting the entire liability on the rer. While denying the claim, he has filed some documents, which he did not prove effectively to be in writing of the deceased. His witness admitted that the owner maintains salary register. No explanation has been given why the same has not been produced. No adjournment was sought for to produce the register. Collusion was so intelligently made that it becomes difficult immediately to find the same out.
14. Mr. Jain, learned Counsel for the owner, submitted that the insurer was represented by an able lawyer and with his experience he could have detected the same immediately. In case a date would have been fixed by the Commissioner, possibly, this aspect could have been brought to his notice. When on the records the facts are tell-tale that there is collusion, I am not able to find otherwise.
15. Mr. S.S. Rao, learned Counsel for the claimant, is justified in making the submission that in the memorandum of appeal also a whisper has not been made about collusion. Mr. P. Roy, learned Counsel for the insurer, made an oral application to permit him to urge this point since he is not adducing any other materials than the materials available on record. Mr. P. Roy was permitted to urge the point subject to payment of costs of Rs. 5,000/- to the claimants since the insurer would be permitted to argue on merits.
16. On reading the evidence of PW 2 that on the day the deceased was going on duty, he was getting Rs. 10/- as batta, I am satisfied that the amount not having been specifically claimed in the application made to the Commissioner for Compensation bearing no date and not mentioning the amount of Rs. 10/- an inference is to be drawn that this amount paid on the dates of work is not to be included in the wages as has been held in Gopal Singh v. Nilamani Pradhan, 1988 ACJ 244 (Orrisa). Thus, the claimant is entitled to compensation on the basis of monthly salary of Rs. 600/- only. Added to it, the claimant would get Rs, 5,000/- towards costs for permitting the insurer to urge-the^ question of collusion.
17. In the result, the appeal is allowed in part. The balance amount shall be refunded by the Commissioner to the insurer. No costs.