National Insurance Co. Ltd Dhanbad vs Julekha Bibi And Ors

I. A. No. 6638 of 2018

The present Interlocutory Application has been filed for condonation of delay of 64 days in preferring the appeal.

Perused the I. A., reasons explained in the Interlocutory Application is accepted.

In view of the reasons discussed in the I. A. the delay in filing the present appeal is hereby condoned.

I. A. No. 6638 of 2018 stands allowed.

M. A. No. 440 of 2018

Heard, learned counsel for the appellant, Mr. Alok Lal, Advocate assisted by Mr. Santosh Kumar, Advocate and learned counsel for the respondents/claimant no.1 to 5, Mr. Manoj Kumar No.2, Advocate.

The appeal has been preferred by National Insurance Co. Ltd against the award dated 14.03.2018 passed in W. C. Case No. 20 of 2015 passed by learned Presiding Officer Labour Court, Ranchi whereby the claim application has been allowed with direction to pay a sum of Rs.7,36,680/- along with interest @ 12% per annum from the date of accident i.e. 13.08.2014, accordingly, the applicants are entitled for interest of Rs. 3,16,772/- and also Rs. 15,000/- for burial expenses as such, compensation amount of Rs.10,68,452/- is to be paid to the applicants and in case of failure, opposite party insurance company would be liable to pay additional interest @ 9% per annum from the date of order.

Learned counsel for the appellant has submitted that for preferring the appeal against the order passed by learned Labour Court, the entire compensation amount of Rs.10,68,452/- has already been deposited before the learned Labour Court as such, the appeal may be heard on merit. Learned counsel for the appellant has further submitted that from perusal of the impugned award, it is apparent that relationship of the deceased with the insured person is not established as employer and the employee and as such, this case is not maintainable under the Employee's Compensation Act. Learned counsel for the appellant has further submitted that the valid papers with regard to genuine documents have not been produced by the owner as the owner of the vehicle. Mr. Swapon Roy has not put his appearance in this case before the Labour Court and as such, the impugned award is bad in law thus fit to be set aside. Learned counsel for the appellant has further submitted that the mode of calculation as envisaged under the Motor Vehicle Act and under Employee's Compensation Act are different as such, the court below has wrongly ascertained the award amount not only this, the insurance company has wrongly been saddled with interest rather as per Section 4A of the Employee's Compensation Act, it should have been on the insured i.e. owner of the vehicle. Learned counsel for the appellant on these grounds have submitted that the interest part may be set aside, which has been saddled wrongly to the insurance company rather the same has to be paid by the insured (owner). Learned counsel for the appellant has submitted that vehicle met accident because of negligence on the part of the driver(deceased) as such, the impugned award may be set aside.

Learned counsel for the respondent/claimant Mr. Manoj Kumar has vehemently argued the case and has submitted that accident took place on 13.08.2014 at around 4.00 P.M. in which husband of the respondent no. 1 and father of respondent no. 2, 3, 4 and son of respondent no. 5 who were applicant/claimant before the court below has died. The vehicle i.e. tanker bearing registration no. WB-23C-1452 was insured before the appellant-insurance company i.e. National Insurance Company Limited vide policy no. 100304/31/13/8300000793 valid for the period from 13.09.2013 to 12.09.2014 and the date of unfortunate occurrence is 13.08.2014, as such, the vehicle was insured at the time of accident. Learned counsel for the respondents has further submitted that owner of the vehicle has not put his appearance in the said case and no such plea has been taken by the Insurance Company in the court below with regard to exemption from payment of the interest part. Learned counsel for the respondent has further submitted that the court below after due consideration of the material brought on record which has been discussed in para-9 of the finding recorded that "no oral or documentary evidence has been produced by the Opposite Party/Insurance Company to controvert the above mentioned facts regarding accident and the employment" and as such, the Labour Court has decided the claim case in favour of the claimants who are the sufferer and the victim of the accident. Learned counsel for the respondents has further submitted that so far the calculation of compensation is concerned, the learned Tribunal has rightly taken note of at para-12 of the finding while deciding the issue no. 7 and 8 where the monthly income of deceased was considered to be Rs. 8000/- per month and 50% of the Rs. 8000/- i.e. Rs. 4000/- is taken into consideration for calculation of the compensation, the deceased was aged about 40 years old, as such, the factor of 184.17 has been taken and as per the calculation, the compensation amount has been calculated to the tune of Rs. 7,36,680/-and thereafter the interest @ 12% per annum has been added from the date of accident i.e. 13.08.2014 and thus the interest to the tune of Rs. 3,16,772/- has been calculated and thereafter burial expenses of Rs. 15000/- has been added and thus the compensation awarded to the tune of Rs. 10,68,452/-. Learned counsel for the respondent has thus submitted that nowhere the Insurance Company has raised the point available to him with regard to section 4(A) of the Employee's Compensation Act by stating that the interest part has to be borne by the Insured(owner) nor submitted before the learned Labour Court that appearance of insured is necessary.

Learned counsel for the respondent has further submitted that the owner of the vehicle Swapan Roy has not put his appearance nor the Insurance Company has taken any step for appearance of the owner vehicle of whom was insured under the policy as stated above as such the delay has not been caused because of latches on the part of the claimant rather it has occurred on the part of the Insurance Company. Present appeal has been preferred by the Insurance Company before this Court though without having any merit, as all the points which have been raised in the appeal either have not been pleaded in the Court below or the same have already been decided in favour of the claimants by a reasoned order, as such because of latches on the part of the Insurance Company, a poor claimant cannot suffer. Learned counsel for the respondent has further submitted that these are benevolent legislation made for the benefit of the victims, as such, entire amount has been rightly awarded against the Insurance Company in view of the judgment which has been quoted in the impugned judgment itself i.e. Jaya Biswal and others vs. Branch Manager, IFFCO Tokio General Insurance Company Ltd. & Anr. as reported in (2016) 11 SCC 201 and as such, in absence of any document the Insurance Company has challenged the interest part though such plea has not been taken before court below by the Insurance Company when the owner/insured has not put his appearance in the court below.

Under the aforesaid circumstances, this appeal is fit to be dismissed as devoid of any merit. No substantial question of law is involved to admit the appeal.

Heard, learned counsel for the parties and perused the materials brought on record including the relevant judgment cited on behalf of both the parties. From perusal of same, it appears that the appellant has taken four pleas while assailing the impugned award.

(i) First point is that relationship between the employer and the employee has not been proved. From perusal of the record, it appears that in para-9 of the finding, learned court below has rightly taken note that no oral or documentary evidence has been produced by the Opposite Party-Insurance Company to controvert the above mentioned fact regarding relationship of employer and employee. This Court is well aware of the fact that onus lies upon the person who pleaded and if a person fails to prove the same, he has no such right to claim in the court of Appeal when he has not adduced any evidence in the court below.

(ii) The second point which has been raised with regard to the calculation of the compensation amount is concerned, this Court has perused para-13 of the finding of the Labour Court and found that court below has rightly calculated 50% of the earning and multiplied the same with factor based on the age and as per the present case, the monthly income was Rs. 8000/-, the calculation was made on 50% of the same i.e. Rs. 4000/- and multiplied the same with factor 184.17 which is prevalent for the person who died at the age of 40 years.

Under the aforesaid circumstances, the Labour Court has rightly calculated the compensation.

(iii) The third point is with regard to the interest. From perusal of the same, it appears that nowhere the Insurance Company has raised or filed an application before the Labour Court with regard to the appearance of the owner so as to shift the liability of interest upon the owner/insured of the vehicle nor raised this issue before Labour Court. Only for the sake of argument, such point have been made which is contrary to the judgment passed in case of Jaya Biswal (supra).

(iv) From the impugned award, it appears that plea which has been taken with regard to contributory negligence or own negligence of driver, it appears that no such plea has been taken in the court below in the written statement. Accordingly, the same is not available to the appellant when the same has not been raised in the court below.

Under the aforesaid discussions, I do not find any substantial question of law involved in this appeal, which is devoid of merit.

Accordingly, the same is hereby dismissed.

The Labour Court is directed to release the amount deposited by the Insurance Company in favour of the claimants after due notice to the claimants and on verification, the same should be released in favour of the claimants.

I. A. No. 10713 of 2018

I. A. No. 10713 of 2018 has been filed under order XLI Rule 5(5) of the Code of Civil Procedure, 1908, since the appeal has already been dismissed as such, I. A. No. 10713 of 2018 for stay is dismissed as infructous.