Oreintal Insurance Co. Ltd. vs Md. Habibur Rahman

Heard Mr. S.K. Goswami, the learned counsel for the appellant. None appears on call for the respondents No. 1 and 2, who are the injured and the

owner of the offending vehicle.

By order dated 28.07.2010, this appeal under Section 30 of the Workmen’s Compensation Act, 1923, preferred against the judgment and order

dated 17.07.2018 passed by the learned Commissioner, Workmen’s Compensation, Kamrup (M), Guwahati in W.C. Case No. 130/2003 was

admitted on the following substantial question of law:

(i) Whether the learned Commissioner can decide a claim petition without framing the issue relating to the status of the employment of the claimant in

view of the Rule 28 of the Workmen’s Compensation Rule, 1924 when there is specific denial by the employer regarding the status of the

claimant as an employee?

(ii) Whether the daily allowance of the claimant can be included with his monthly wage by the learned Commissioner while calculating the

compensation?

3) In the claim petition, it is projected that the respondent No. 1 was working as a labour in truck bearing registration No. AS-14-7140 owned by the

respondent No. 2 and that on 25.12.2002, the said vehicle met with an accident on Mugdi Bridge under Mukalmuah P.S. in the district of Barpeta,

Assam. It was claimed that the respondent No. 1 was 20 years old at the time of the accident and was receiving monthly wages of Rs.4,000/- per

month and that he had sustained grievous injury in the accident, leading to permanent total disablement. The appellant had contested the case by filing

written statement. In support of the claim, the respondent No. 1 examined himself as PW-1 and exhibited the following documents, viz., Doctor’s

Prescriptions (Ext.1 to 3), X-Ray Report (Ext.4), Medical Certificate (Ext.5), X-Ray Plates (Ext.6) and Police Report (Ext.7). In defence, the husband

as well as constituted attorney of the respondent No. 2 examined himself as DW-2. The appellant examined their Branch Manager as DW-1 and had

exhibited the Police Report (Ext.A) and the Insurance Claim Form submitted by the owner (Ext.B).

4) It would be relevant to mention herein that on a perusal of the LCR, the evidence of DW-1 and the exhibited documents by the appellant are not

found on record. All the documents in the LCR is serially numbered from Sl. No.1 to 69, and as there is no break in the seriatim of the documents in

LCR, hence, it is presumed that the evidence of DW-1 as well as the documents exhibited by the appellant has not been transmitted to this court along

with the LCR.

5) The learned counsel for the appellant submits that the accident had occurred on 25.12.2002 at about 8:00 PM according to Police Report (Ext.7).

Therefore, it is apparently unbelievable that the respondent No. 1, who is a resident of Village Bamunbari under PS Mukalmuah in the district of

Nalbari would seek medical assistance from the doctor (PW-2), who is practicing at Barpeta and according to the learned counsel for the appellant,

the said doctor (PW-2) was a child specialist. Moreover, it is submitted that assuming that as the accident had occurred at 8:00 PM, it was practically

impossible for the doctor to examine the injured between 9:00 to 10:00 PM on the same date because somebody is required to approach the doctor

from Nalbari and then bring the doctor to Nalbari from Barpeta.

Moreover, it is submitted that as per Police Report (Ext.7), injured was taken to the Mukalmuah PHC and in the absence of any medical documents

pertaining to the Mukalmuah PHC, it is submitted that it is not believable that a private doctor could have visited the PHC, Mukalmuah for examining

the respondent No.1. It is further submitted by producing the claim form (Ext.B), the appellant had proved that the owner of the vehicle (respondent

No2) had declared before the appellant that there was no injured in the said accident. To corroborate the same, the learned counsel for the appellant

has referred to the evidence of DW-2, who is the husband and the attorney of respondent No.2, who had deposed that they had not engaged any

labour in truck and that the occupants of the said vehicle was only the driver and handyman who did not suffer any major or grievous injury. The DW-

2 had specifically denied that any other person was travelling in the vehicle at the time of the accident.

6) By referring to the evidence of DW-2, it is submitted that the said witness had admitted that the vehicle was empty and it was going to a brick-field

for loading of bricks. However, in the cross-examination, the respondent No. 1 (DW-1) could not say from where the boulders were loaded and he did

not know the location of the house of the owner. In the cross-examination, the respondent No. 1 had also admitted that he did not have any

employment certificate from the owner to show that he was working as a labour in the truck and he had submitted that no documents to show that he

was paid Rs.4,000/- salary per month. Further denying the permanent disability, the learned counsel for the appellant has referred to that part of the

cross-examination of PW-1, wherein he stated that he was doing cultivation job in his house.

7) By further referring to the cross-examination of the DW-2, it is submitted that his evidence could not be demolished to prove that the respondent

No. 1 was working as a labour in the truck of the respondent No.1. It is further submitted that the police investigation report (Ext.A) which was

exhibited by DW-1 had established that there was no injured in the said accident. It is further submitted that according to his instruction, the veracity

of entries made in the police report (Ext.A) as well as of the claim form (Ext.B) submitted by the owner could not be demolished in course of cross-

examination of DW-1 and, as such, the learned Commissioner had committed grave error by discarding the entries made in Ext.A by referring the

same to be a self serving statement.

It is submitted that the said Ext.A was police report and was not self serving document prepared by the appellant and, as such, the entries made in the

said Ext.A could not have been brushed aside in a cavalier manner by the learned Commissioner. Therefore, the main edifice submissions made by the

learned counsel for the appellant is that the claim made by the respondent No.1 was a false and frivolous and manufactured case and in the absence

of any relationship of the respondent No. 1 with the respondent No.2, the nature of employment having not been proved, there would be no liability on

the appellant because in the absence of any employer-employee relationship, the provisions of Workmen’s Compensation Act, 1923 (now

Employees’ Compensation Act, 1923) would not apply on the respondent No.2, the owner of the vehicle and therefore, there was no requirement

of the appellant to indemnify any loss or injury to the respondent No. 1, who was person not covered by the provisions of the said Workmen’s

Compensation Act.

8) Having gone through the evidence on record, this Court finds that as per the entries made in the X-Ray Report (Ext.5), the doctor (PW-2) has

certified on 17.04.2003 about nature of injuries suffered by the respondent No. 1 on the date of issuance of such certificate. In the absence of any

document to show the nature of treatment received by the respondent No. 1 in Mukalmuah PHC, this Court has no option as to accept the

submissions made by the learned counsel for the appellant as it was impossible for the doctor (PW-2) to have visited and treated the respondent No. 1

on the date of accident between 9:00 to 10:00 PM because the distance between place of accident and/ or Mukalmuah PHC and Barpeta is around

30-35 KM. Naturally, this Court finds that the anxiety of the learned counsel for the appellant has some force because a better equipped Nalbari Civil

Hospital is located only 5 KM away from the place of accident, as such, his anxiety is not misplaced as to why the respondent No.1 would not go to

Civil Hospital which is 5 KM away and get treatment from a child specialist from 30-35 KM away.

9) Therefore, to bring a child specialist to examine an injured in a road traffic accident is sufficient to create a doubt about the case projected in the

claim petition for calling such doctor from a far of place by not availing the treatment at Mukalmuah PHC where the police had taken the injured or

from Nalbari Civil Hospital nearby. Moreover, from the candid evidence of the DW-2, that there was no employer-employee relationship between the

respondents No. 1 and 2, and the said evidence having not been demolished, this Court finds that the learned Commissioner had committed grave error

in discarding the evidence of DW-2, merely on the ground that the owner of the vehicle had failed to appear before the court to give evidence by

ignoring the fact that the said witness (DW-2) had appeared on the strength of a Power of Attorney, which was proved as Ext.A by the said witness.

Moreover, in the opinion of this Court, when the husband of the owner comes and deposes in place of wife, such a person can be said to be the

employer within the meaning of Section 2(e) of the Workmen’s Compensation Act, 1923, which is inclusive of “managing agentâ€. Therefore,

in the absence of any challenge to the said Power of Attorney (Ext.A), proved by the DW-2, the order of the learned Commissioner, discarding the

evidence of DW-2 is not found to be sustainable.

10) In view of above, the substantial question of law No.1 is answered in the negative and in favour of the appellant by holding that the learned

Commissioner had erred in law by not framing any issue relating to status of employment of the respondent No. 1/ claimant. However, as no purpose

would be served in remanding the matter for the purpose of framing issue only while holding that the Commissioner cannot decide the claim petition

because examining the status of the claimant as an employee, the claim itself was not maintainable at the very threshold. In view of the dismissal of

the claim, the substantial question of law No. 2 is not required to be answered as the same has become infructuous.

11) In view of above, and in the absence of any relationship between the respondents No. 1 and 2 as an employee and employer, the claim under the

provisions of Workmen’s Compensation Act, 1923 was not maintainable either on facts and in law. Hence, this Court has no hesitation in setting

aside the impugned order dated 17.07.2018 passed by the learned Commissioner, Workmen’s Compensation, Kamrup (M), Guwahati in W.C.

Case No. 130/2003.

12) Accordingly, the claims stands dismissed. In view of the dismissal of this appeal, the appellant i.e. the Oriental Insurance Co. Ltd. shall be entitled

to refund of the compensation amount deposited by them before the Registry of this Court.

13) Sent back the LCR with a note that the evidence of DW-1 adduced by Mr. Bijoy Kumar Nandi, Branch Manager, Oriental Insurance Co. Ltd,

Hailakandi and the exhibited documents are not available in the LCR.