Orissa High Court
National Insurance Co. Ltd. vs Bhan Singh And Ors. on 29 January, 1998
Equivalent citations: II(1998)ACC599, 1999ACJ531
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. These two appeals have been filed by the insurance company against a common award passed in W.C. Case No. 19 of 1986 and W.C. Case No. 1 of 1987 which had been heard analogously by the Commissioner for Workmen's Compensation (in short, 'the Commissioner').
2. W.C. case No. 19 of 1986 was filed by the legal heir of late Sukhdev Singh claiming that the deceased was the driver in respect of truck bearing No. ORJ 6665 belonging to the owner Sabyasachi Misra and due to accident on 15.6.1986, the deceased expired. W.C. Case No. 1 of 1987 was originally filed by the father and wife of deceased Rabindra Patra alias Paik, wherein it is also claimed that the deceased Rabindra was the driver of the said ill-fated truck and expired in the accident dated 15.6.1986.
3. In W.C. Case No. 19 of 1986, the owner in his written statement admitted that deceased Sukhdev Singh was the driver of the vehicle and died in course of employment. It was further admitted that the deceased was getting Rs. 1,200 as monthly wages. In W.C. Case No. 1 of 1987, however, the owner claimed that deceased Rabindra was not a driver of the vehicle and had resisted the claim petition. In both the cases, the insurance company denied the allegations in the claim applications.
4. Both the cases were heard together. The Commissioner found that admittedly Sukhdev Singh was the driver and had died in course of employment. Keeping in view the age and wages, the Commissioner fixed a sum of Rs. 83,192 as compensation and further directed the insurance company to pay the said amount along with penalty at the rate of 30 per cent. In W.C. Case No. 1 of 1987, the Commissioner after referring to the evidence on record including the evidence of the owner himself who had stated that deceased Rabindra Paik was working as a helper, held that, in fact, deceased Rabindra was working as a helper. The Commissioner further held that deceased Rabindra must have been receiving a salary of Rs. 1,100 including Rs. 300 towards food charges and on that basis calculated Rs. 83,192 as compensation payable to the claimants on the basis that the deceased was aged about 30 years at the time of death.
5. In both these appeals, the learned Counsel for the insurance company has contended that since both the claimants were claiming that deceased Sukhdev Singh as well as deceased Rabindra Paik were drivers, the claim applications of both the claimants should be rejected, as there could not have been two drivers in a truck. The Commissioner after referring to the materials on record and after referring to the admission of the owner as well as other evidence on record has held that deceased Sukhdev Singh was the driver whereas the deceased Rabindra Paik was the helper in the truck. Such finding is essentially a finding of fact not liable to be disturbed in an appeal under Section 30 of the Workmen's Compensation Act.
6. So far as M.A. No. 414 of 1992 is concerned, the learned Counsel for the insurance company has contended that even assuming that the deceased was a helper, the finding of the Commissioner regarding wages of the deceased Rabindra Paik is based on surmises only. Such criticism of the counsel for the appellant appears to be justified. The Commissioner had concluded as follows:
...It is evident that the offending vehicle was usually operating on the long route and the O.P. 1 must be paying Rs. 800 per month because of his knowledge in driving besides bhatta of Rs. 300 per month...
On going through the record, I find that apart from the mere statement of the claimant Jagabandhu (father of the deceased), there was no other material in support of the finding of the Commissioner. On the other hand, the owner of the vehicle as DW1 categorically stated that the deceased was getting Rs. 700 per month. Except a bald suggestion to the effect that the deceased was getting Rs. 800 per month and getting bhatta of Rs. 300, DW1, the owner, has not been cross-examined in any other manner. There was no basis for the Commissioner to surmise that since the truck was operating on long route and the deceased knew how to drive, he must have been getting Rs. 800. Since the finding of the Commissioner was based on surmises and conjectures, such finding is vulnerable. Differing from the conclusion of the Commissioner regarding wages, I hold on the basis of the unchallenged evidence of the owner himself that deceased Rabindra Paik was getting wages at the rate of Rs. 700 per month. The finding regarding age of both the deceased appears to be justified and there is no reason to interfere with the finding regarding age. As such on the basis of such finding, while sustaining the compensation payable in W.C. Case No. 19 of 1986,1 reduce the compensation payable in W.C. Case No. 1 of 1987 by calculating the monthly wages of deceased Rabindra at the rate of Rs. 700. On such calculation at the rate of 40 per cent of the salary x the relevant factor of 207.98, the amount payable is Rs. 58,234.40.
7. The Commissioner has imposed a penalty of 30 per cent in both the cases. Keeping in view the principle of law decided in the Full Bench decision of this Court in Divisional Manager, New India Assurance Co. Ltd. v. Biswanath Barman 1997 ACJ 78 (Orissa), the insurance company cannot be made liable for payment of penalty as well as interest. Accordingly, the direction regarding payment of penalty and interest is quashed.
8. In the result, both the appeals are allowed to the extent indicated above. There will be no order as to costs.