Laxmi Debi VsPradip Goel and Another

S.C. Das, J.—This appeal u/s 30 of the Employees Compensation Act, 1923 is directed against the judgment and award (Nil) dated 05.10.2002 passed by the Commissioner, Workmen''s Compensation, West Tripura, Agartala (District & Sessions Judge) in Case No. TS(WC) 20 of 2001. Heard learned counsel, Mr. H. Debnath for the appellant and learned Sr. Counsel, Mr. S.M. Chakraborty, for respondent No. 2. None was present for respondent No. 1 (alleged employer).

The appellant, being the petitioner, presented an application before the Commissioner, Workmen''s Compensation, praying for granting her adequate compensation for the death of her husband, Pawan Mahata, who was working as a labourer employed by the respondent No. 1, the owner of a Transport Corporation, namely A.T.C. Transport Corporation (Assam) Ltd., alleging inter alia that on 30.03.2001 at about 12-30 p.m., the said Pawan Mahata, the husband of the petitioner, a godown labourer of the respondent No. 1, was engaged in carrying load of heavy bundle of clothes on head to the store room of respondent No. 2 and while with the load on head he was entering in the store room of respondent No. 2, the bundle struck with upper part of the door and fell on him and as a result, he received severe injury and was taken to G.B. Hospital where he died on 01.04.2001 at 5-00 p.m. The deceased Pawan Mahata died because of the injury suffered arising out of and in the course of his employment and so, the appellant petitioner being the wife, claimed the compensation before the Tribunal. She has also alleged that her husband used to get Rs. 4000/- per month from respondent No. 1 and that it was within the knowledge of the respondent about the accidental death of her husband but no compensation was paid by the respondent.

Respondent Nos. 1 and 2 recorded their appearance before the Commissioner on receipt of notice of the case and submitted their written statements denying the facts alleged in the petition.

Respondent No. 1, the alleged employer inter alia stated that the deceased was never a workman employed by the respondent and that there was no question of his suffering any injury in the course of or arising out of employment and that all the statements made in the petition were false and baseless.

Respondent No. 2 also submitted written statement denying the averments made in the claim petition inter alia stating that there was no such incident occurred on the alleged date and time and that respondent No. 2 knew nothing about the alleged accident of husband of the petitioner.

The Commissioner, Workmen''s Compensation, considering the pleadings, framed following issues for decision:--

I. Whether deceased Pawan Mahata a Workman under the O.P. No. 1 on the date of alleged accident on 30.03.2001 as defined in workmen''s Compensation Act?

II. Whether Pawan Mahata succumbed to his injuries on 30.3.01 at 12-30 p.m. at Shibnagar Masjid Road (Store of the O.P. No. 2) arising out of and in course of his employment under the O.P. No. 1 as labour?

III. Is the claimant-petitioner entitled to get any compensation under Workmen''s Compensation Act? If so, what should be the quantum of compensation and who is liable to pay it?

In course of hearing, petitioner examined herself as P.W.1 and also another witness namely P.W.2 Suresh Mahata, an eye witness of the accident.

On behalf of respondent No. 1, one witness namely O.P.W. 1, Ashok Kr. Mishra has been examined as a Power of Attorney of respondent No. 1.

The tribunal decided the issues against the petitioner and dismissed the claim. Hence, this appeal.

It is contended by learned counsel, Mr. Debnath that the deceased was working as a godown labourer engaged by respondent No. 1 and it is known to all concerned that such engagement of labourers are made without giving/issuing any appointment letter or keeping any document or evidence of such employment. An unnatural Death (U.D.) case was registered after the accident which shows that the husband of the appellant petitioner died because of the accident arising out of and in the course of employment and the Commissioner, Workmen''s Compensation failed to appreciate the case in its right perspective and discarded the evidence of P.W.2 without any reason. He has also contended that the petitioner had been residing in her home state at Bihar and a totally illiterate lady and one cannot expect better evidence to establish her claim in a case of Workmen''s compensation. Learned counsel, therefore, prayed for allowing the appeal and to award adequate compensation.

Respondent No. 1 though recorded appearance on receipt of notice but remained absent on the date of hearing. Learned Sr. counsel, Mr. S.M. Chakraborty appearing for respondent No. 2 contended that there is no claim of the petitioner against respondent No. 2 and that respondent No. 2 adduced no evidence also and so he has nothing to submit on merit on behalf of respondent No. 2.

At the very outset, I would like to observe that the case was conducted very casually on behalf of the petitioner. Even the documents placed on record, were not exhibited at the time of recording evidence. It was the duty of the learned counsel of the petitioner to approach the tribunal to call for the records of U.D. case which would afford adequate evidence about the alleged accident and the cause of death. The Commissioner, Workmen''s Compensation being a tribunal, would also take an active role in course of inquiry for fair ends of justice. A tribunal, in course of inquiry, cannot be a mere spectator but should control the inquiry by actively participating therein to find out the truth.

The Employees Compensation Act is a piece of social security and welfare legislation. Its dominant purpose is to protect the workmen and, therefore, the provisions of the Act should not be interpreted narrowly so as to debar the workman from compensation which the legislature thought they ought to have. A labourer working in unorganized sector render services in an unprotected atmosphere and the tribunal while adjudicating upon such cases of labourers must take a proactive role to ascertain the truth, particularly in a case like the case at hand, where the facts and circumstances brought on record that the death occurred because of some incident in the course of or arising out of accident The intention of the legislature was to make the employer or a insurer of the workmen responsible against the loss caused by the injuries or death; which ought to have happened, while the workmen was engaged in his work. Unfortunately, in the present case neither any effective prosecution was made on behalf of the petitioner by the learned engaged counsel, nor any active role was taken by the Commissioner, Workmen''s Compensation to ascertain the fact and thereby the claim made by the illiterate wife of an unfortunate labourer has went in vain.

Admittedly, the petitioner knew nothing about the accident being she was residing at her home state, Bihar and her husband, the deceased was working as a labourer of loading and unloading at Agartala. She simply stated that her husband was working as a labourer in a Transport Company at Agartala and died while carrying a heavy load of a bundle. She simply stated that her husband used to remit Rs. 3000/- per month to her to run the family. In her cross examination simply some suggestions were put on behalf of the respondents.

P.W.2 was a co-labourer of the deceased and he narrated the incident elaborately. He stated that the deceased Pawan Mahata was a labourer engaged for loading and unloading in the Transport Company namely A.T.C. where he(witness) was also a labourer under same owner. On 30.03.2001 while they were on duty, at about 12-30 p.m., the deceased was carrying a bundle of clothes and he fell down and sustained injury on his head. The bundle of clothes struck in the door of the store room of O.P. No. 2 and it fell down and thereby the deceased sustained injury. He was also with the deceased with another bundle of clothes on head. The deceased was taken to IGM hospital and then to GB. Hospital where he died on 01.04.2001. The transport company used to pay them on a daily basis and the actual monthly income was approximately Rs. 4000/-. The deceased was a labourer for about 5/6 years in the company (respondent No. 1). He informed the wife of the deceased and thereafter wife of the deceased came and cremation was done. He went to the Manager of the company (respondent No. 1) with the wife of the deceased but nothing was paid to the petitioner. The deceased was aged about 30 years at the time of accident. He further stated that he and deceased Pawan used to stay in the same hut at Surjya road near A.T.C.

Except suggestions, there is nothing else in the cross examination of P.W.2.

O.P.W.1 Ashok Kr. Mishra is an Attorney of respondent No. 1 and he stated in his deposition that Pawan Mahata was never an employee of ATC Transport Corporation and that he had been serving as a Manager of the ATC Corporation for about 12 years and posted at Agartala. There was also no employee namely Suresh Mahata The nature of their business was to carry goods of consignors from different places and to keep it in their store and thereafter they used to give intimation to the consignee and accordingly consignee after showing necessary papers would take delivery of the goods from their go-down at their own risk and labour. For the last 5 years, there were only 4(four) workmen including himself working in the corporation at Agartala. The other 3 (three) were Ranjan Tripati, Dibakar Kr. Pandey, Jagbir Singh. He was the Manager, Ranjan Tripati was Cashier and the rest two were Store Keeper and Arranger. They simply charge freight of the goods from consignor''s destination to their go-down and nothing more. He also stated that it was not their responsibility to make over the goods to the consignee. Except suggestion, there is nothing in the cross examination of the witness.

What O.P.W. 1 has stated in his deposition are completely beyond the pleadings of respondent No. 1. In the written statement Respondent No. I simply denied the facts what has been stated in the claim petition and nothing more. The witness (O.P.W. 1) stated completely beyond the pleadings and therefore, the evidence deserves no consideration in the eye of law. A proceeding under the Workmen''s Compensation Act is in the nature of a civil suit and so, the parties to the proceeding are noticed to put in their written statement narrating the facts to counter the averments made in the claim petition. The evidence adduced by O.P.W. 1 since beyond the pleadings of the respondent No. 1, the tribunal was absolutely wrong in relying on such evidence.

On perusal of the record, I find that a certificate of Post mortem done at IGM hospital has been placed. A First Information Report of West Agartala P.S. U.D. Case No. 28 of 2001, dated 02.04.2001, registered u/s 174 of Cr.P.C., has also been placed which shows that the FIR was lodged by one doctor Chitan Debbarma, Medical Officer of G.B. Hospital who examined the deceased wherein it has been mentioned that Pawan Kr. Mahata, aged 30 years, S/o. Ram Avtar Mahata of ABC Transport India Ltd., Surjya Road, Agartala had expired on 01.04.2001 at 5-45 p.m. and that he was admitted with the history of trauma in the nape of neck following fall while carrying loads. Another forwarding letter of the police officer who requested SDM, Sadar, to conduct P.M. examination over the dead body is also placed on record and a copy of the dead body challan and inquest report also placed on record. As already stated earlier, the documents were not exhibited at the time of hearing. Post mortem report has not been placed on record to prove the cause of death of the deceased Pawan Mahata. The materials on record clearly speak that the deceased Pawan Mahata died an unnatural death and it has also been brought on record that he suffered some injuries while carrying loads. Under those circumstances, the evidence of P.W.2 which is supporting the fact stated in the claim petition has not been properly considered by the tribunal. To ascertain the cause of death and the circumstances under which Pawan Mahata received the injuries, the tribunal would call the records of U.D. Case from the Court of Magistrate and would take a pragmatic decision in respect of the claim of the petitioner about the cause of death of the deceased. Regarding the observation of the tribunal that no notice was served on the respondent employer, I am of the considered opinion that while the evidence of P.W.2 makes it abundantly clear that he along with the petitioner went to the Manager of respondent No. 1 after the death of the unfortunate labourer Pawan Mahata, itself amounts to giving of information about the death of the labourer. Further, while Pawan Mahata was carrying loads from the go-down of the respondent No. 1 to the Store of respondent No. 2, on the engagement of the respondent No. 1, it ought to be presumed that it was within the knowledge of the employer about the accident.

The manner in which the claim petition has been disposed of is contrary to the concept of the welfare legislation and I think in the facts and circumstances of the case, the order passed by the tribunal should be interfered and set aside and accordingly, I do so.

The case is remanded back to the Commissioner, Workmen''s Compensation (District & Sessions Judge), West Tripura, Agartala to inquire into the matter afresh, calling the records of U.D. Case from the Court of the Magistrate and further exhibiting the documents which are already on record, and to pass a judgment afresh taking into consideration the materials already on record and further evidence if any, the parties like to adduce during inquiry including that of the record of U.D. case. The Commissioner, Workmen''s Compensation should complete the inquiry within 3(three) months from the date of receipt of a copy of this judgment and L.C. Record.

With the above directions, the appeal stands disposed of. Send back the L.C. records along with a copy of this judgment.