Oriental Insurance Company Ltd. vs Dhani Devi and Others

Tarlok Singh Chauhan, J.

CMP(M) No. 953 of 2014

The applicant/appellant has sought condonation of 96 days delay in filing of the appeal. Since sufficient cause has been shown in para 3 of the application which prevented the applicant from filing the appeal within the prescribed period of limitation. This application is duly supported by an affidavit of the Senior Divisional Manager of the applicant. Accordingly, the delay of 96 days in filing the appeal is condoned. The application stands disposed of. The appeal be registered.

FAO No. 66 of 2015

Heard. Admitted on the following substantial questions of law:-

(i) Whether findings on issues No. 1 and 6 have rightly been given by the learned Commissioner below?

(ii) Whether the interest as awarded @ 12% is justified as per the provisions of the law/Act and policy?

(iii) Whether the appellant is liable to pay any amount beyond the legal liability as per Section 3 of the Act including the interest?

With the consent of the parties, the appeal is taken up for final hearing.

This appeal under Section 30(1) of the Employees Compensation Act (for short the ''Act'') is directed by the Insurance Company against the award passed by the learned Commissioner, Karsog, whereby he awarded a sum of Rs. 6,62,515.50 along with interest @ 12% per annum from the date when it fell due till its realization.

The facts in brief may be notice. The respondent claimed compensation of Rs. 15,00,000/- along with interest, penalty and cost by filing petition under Section 22 of the Act on account of death of Sh. Narinder Kumar, who died in an accident which took place on 10/11.6.2011, while he was driving a vehicle No. H.P-32-B-0223 (Mahindra Pick-up). The accident is alleged to have been taken place at Boh Curve due to mechanical defect, as a result whereof the vehicle rolled down, resulting in serious multiple injuries and consequent death of Narinder Kumar.

It is alleged that Sh. Narinder Kumar was unmarried and was 32 years old at the time of accident. The deceased was getting Rs. 10,000/- as salary, apart from Rs. 100/- per day as diet money.

The appellant contested the claim by filing reply, wherein it was alleged that there was no relationship of employer and employee between deceased and the owner Sh. Amarwati and that the application was not maintainable for want of mandatory notice to the Insurance Company under the Act. It was also submitted that without policy particulars, vehicular documents, driving license etc. the liability of the Insurance Company can neither be accepted nor can be denied specially.

The owner of the vehicle who was arrayed as respondent No. 1, contested the application, wherein he did not deny the employment of Sh. Narinder Kumar and it was also not disputed that he died during the course of employment. However, it was submitted that the deceased was being paid a sum of Rs. 5,000/- as monthly wages and Rs. 50/- as diet money per day and not Rs. 10,000/- and Rs. 100 respectively as alleged.

I have heard the learned counsel for the parties and gone through the records of the case.

Since all the questions are somehow interconnected and interlinked, therefore, the same are being taken up together for consideration.

Questions No. (1) to (iii)

Though claimants had stated that the deceased was being paid Rs. 10,000/- per month as salary beside Rs. 100/- per day as diet money, however, their version was not accepted by the Commissioner, who choose to rely upon the version put forth by the owner to the effect that the deceased was being paid Rs. 5,000/- per month beside Rs. 50/- as daily diet money. Admittedly, the appellant did not led any evidence to the contrary. Therefore, the learned Commissioner committed no illegality in working out the salary of the deceased to be Rs. 5,000/- per month besides Rs. 50/- as daily diet money and there being no evidence led by the appellant in this aspect. Moreover, in absence of allegations of collusion between the claimants and owner, the Commissioner otherwise had no option but believe the version regarding salary put forth by either of the parties.

The learned Commissioner based upon the evidence recorded before it has come to a categoric finding that the accident in question has arisen out of and in the course of deceased employment. This being the position, the employer cannot get rid of the liability to pay compensation in accordance with Chapter-II of the Act. However, since there was a contract of indemnity executed between the owner and the Insurance Company, the burden to make the payment rests upon the Insurance Company.

Indisputably neither the owner nor the appellant deposits the amount as per the requirement of the Act, having failed to do so it has rightly been burdened with interest. The appellant would however contend that the interest as warded @ 12% is not justified as per the provisions of law/Act. But then he has not been able to substantiate this submission any further. It is settled principle that a person who has been deprived of the use of money should be compensated in this behalf. After all, interest is nothing, but another mean for compensation for depravation.

The appellant would then argue that since the fitness certificate of the vehicle had already expired and there was a breach of policy, this automatically absolved the appellant of its liability to pay compensation. Copy of fitness certificate has been proved on record as Ex. RW-1/E, which was to expire on 29.9.2011, whereas the accident took place on 11.6.2011. Thus even this contention of the appellant cannot be accepted.

Lastly, the appellant would contend that the compensation awarded in favour of the deceased is on the higher side. Even this contention is meritless, since the compensation has been awarded in accordance with the relevant factor as mentioned in Schedule-IV of the Act.

All the substantial questions of law are answered against the appellant. Resultantly, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their costs.