New India Assurance Company Ltd vs Madhu Pingua And Another

Biswanath Rath, J.

This appeal involves a challenge to the order dated 19.02.2010, passed by the Additional District Magistrate-cum-Commissioner for Workmen’s

Compensation, Mayurbhanj in W.C. Case No.15 of 1993 but at the instance of New India Assurance Company Ltd.

Short fact involving the case is that the proceeding vide Section 22 of Workmen’s Compensation Act, 1923 (herein after called ‘the Act,

1923’) on the strength of a complaint by claimant-respondent no.1, claiming that there is loss of earning capacity of claimant on account of

accident he faced arising out of and in course of employment. On the premises that claimant was getting a monthly wage of Rs.1,200/- at the relevant

point of time, he being appointed by Respondent No.2, it was also claimed that for claimant suffering serious injury, the claimant was shifted to

Karanjia Sub Divisional Hospital for treatment. In the Hospital, there is amputation done on both the legs of the claimant. Claimant remained as an

indoor patient from 07.04.1993 to 19.06.1993. Involving same issue, Joshipur P.S. Case No.33 dt.7.4.1993 under Sections 279, 337, 338 of I.P.C was

also registered.

Respondent No.2, the owner of the vehicle appeared and filing written statement while admitting the fact of employment as well as the accident

arising out of and in course of employment, also admitted that the claimant was in receipt of Rs.1,200/- per month at the relevant point of time. For

having a valid policy No.009161 from 31.12.1992 to 30.12.1993, respondent no.2, the owner submitted that compensation should be borne by

Insurance Company.

The present appellant, opposite party no.2 appearing before the authority below filed its written statement stating that the petition does not contain

policy particular of the vehicle. Thus, the appellant disputed the involvement of the truck in the accident as claimed by the claimant and further

contended that unless the policy is produced and proved, they are not in a position to admit the claim. Insurance Company also shifted the claim on the

owner to prove on producing relevant documents and adduce evidence. Insurance Company also disputed the claim of claimant being an employee

under opposite party no.1 therein and that he was getting salary from the owner. On the basis of the pleading, the Commissioner framed the following

issues:

(i) Whether the petition filed by the petitioner is maintainable in this court under the provisions of the Act?

(ii) Whether the injured Coolly Madhu Pingua is workman within the meaning of the Act?

(iii) What was the age and wage of the deceased workman at the time of accident and amputation of his both the legs?

(iv) Whether the injured Coolly Madhu Pingua was employed by O.P. No.1 in his Truck as coolly and receive injury in the accident arose out of and in

course of his employment?

(v) Whether the O.P. No.1 the employer is liable for payment of compensation?

(vi) Whether the liability for payment of compensation by O.P. No.1 the employer can be shifted on the O.P. No.2 the insurer?â€​

Based on the plea of the parties and the materials available on record, the Commissioner answered Issue Nos.(i) to (vi) in favour of the claimant

and ultimately calculating the compensation, has come to hold that the claimant is entitled to a sum of Rs.97,598/- on the finding that the claimant has

sustained permanent partial disablement at the rate of 80%, to be borne by the Insurance Company for there being a valid insurance policy.

Assailing the impugned judgment/order, Sri S.K. Dash, learned counsel appearing for the Insurance Company taking this Court to the plea of the

Insurance Company in the authority below submitted that the judgment/order is not based on admissible evidence and there is also non-consideration

of the admissible evidence. Sri Dash also contended that there is no proper assessment with regard to loss of earning capacity. It is also contended

that the judgment/order suffers from non-production of valid route permit by the owner establishing a valid journey involving the truck involved here.

Sri Dash also contended that the Commissioner has committed material irregularities accepting the version of the claimant and that the claimant was

not registered under the provision of Motor Transport Workers Act, 1961. It is in the circumstance, demonstrating through the materials available on

record, Sri Dash attempted to support the grounds raised hereinabove in his opposition to the impugned judgment/order.

Learned counsel for the claimant in his attempt to support the judgment/order taking this Court to the plea and the averments through the written

statement submitted that there is right appreciation of the pleading as well as to the counter statement of the parties concerned and the impugned

judgment/order is also based on materials available on record, leaving no scope of interference on the same.

Considering the rival contentions of the parties, this Court finds, the claimant making a case that he had sustained serious injuries involving

amputation of both legs suffering, spending few months in the hospital for the purpose and that the accident arose in course of and arising out of

employment, finds support of the written statement of the owner. Further, even though the owner has submitted a valid policy covering supporting the

claim of the petitioner operating at the relevant point of time, this Court finds, there is no attempt by the Insurance Company to have rebuttal evidence

either on the claim of insurance policy or on the claim of accident arising out of and in course of employment. For the findings on each issue, this

Court finds, the Commissioner has taken care of the pleadings of respective parties and the materials available through records in the process of

adjudication leaving no scope for interfering in the impugned judgment/order

For the support of the findings of the Commissioner and the pleadings as well as materials available on record, this court finds there is no scope for

interfering in such judgment/order. As a result, the appeal stands dismissed. There shall be no order as to cost.