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Judgment
(1) Heard Mr. K. Sarma, the learned advocate for the appellant as well as Ms. S. Roy, the learned advocate for the respondents No.1 and Mr. M.
Khan, the learned advocate for the respondent No.2.
(2) By this appeal under Section 30 of the Workmen’s Compensation Act, 1923, the appellant, who is the owner of the offending vehicle cum
employer of the predecessor-ininterest of the respondents No.2 and 3, has challenged the judgment and award dated 23.12.2014, passed by the
learned Commissioner, Workmen’s Compensation, Bongaigaon (now Employee’s Compensation, Bongaigaon), in W.C. Case No. 85/2012.
(3) This appeal was admitted for hearing by order dated 21.06.2016, on the following substantial question of law:-
“Whether the finding of the learned Employees Compensation, Commissioner that the workman was not on duty at the time of the accident is
perverse?â€
(4) Before proceeding further, it is apparent that a typographical error had crept in the framing of the substantial question of law, because the finding
was that the deceased was “on dutyâ€, as such, the use of words “not on duty†is a clerical and/or typographical error. Hence, the word
“not†appearing in the question is deleted and said substantial question of law is reframed as under:-
“Whether the finding of the learned Employees Compensation, Commissioner that the workman was on duty at the time of the accident is
perverse?â€
(5) The respondents No.2 and 3, namely, Musstt. Megali Sultana and Miss. Neha Sultana are respectively the wife and daughter of Late Sahinur Ali.
It was claimed that he died during and in course of employment as a driver of car (Indigo C.S.) bearing registration No. AS-01-AR- 6554. In W.C.
Case No. 85/2012, it was projected that the deceased was in employment of the appellant, namely, Sri Utpal Das since last 6 (six) months before the
date of incident on 13.11.2011. It was claimed that on 13.11.2011, while discharging his duties as the driver of the vehicle, the deceased was
kidnapped by some unknown criminals along with the vehicle. An ejahar was lodged by the respondent No.2, which was registered as Jogighopa P.S.
Case No. 200/2011 under Section 120(B)/365 IPC. Later on, the charges under Section 302/201 IPC was also added because during investigation, the
Officer- inCharge of Jogighopa P.S., with the help of police personnel from Kowlia Basha Police O.P., recovered the concealed dead body of the
deceased on 28.11.2011, from under the ground from Village- Chainamara under Tamulpur P.S. in the district of Nalbari and the accusedkidnapper
was also arrested. It was stated that despite service of notice under Section 10 of the Workmen’s Compensation Act, 1923 no compensation was
given by the appellant. It was projected that at the time of death, the deceased was 40 years of age and was earning a sum of Rs.6,500/- as monthly
wages, out of which the deceased had maintained a family of 3 (three) members. The respondents No.2 and 3 claimed a sum of Rs.7,00,000/- as
compensation with 12% interest from the date of accident till realization.
(6) On 22.08.2013, the appellant had filed his written statement. In paragraph 3 thereof, the appellant had admitted that the deceased was employed as
his driver and also categorically admitted that on 13.11.2011, the deceased had died while discharging his duty with the said vehicle. In paragraph 3 of
the written statement, the appellant had disclosed that the said vehicle was duly insured with the respondent No.1 by an insurance policy of the
respondent No.2, which was valid from 08.11.2011 to 07.11.2012 and, as such, the risk of the appellant was covered by the said insurance. As per
paragraph 5 of the said written statement, photocopies of the insurance policy, registration certificate, fitness certificate and permit of the said vehicle
was enclosed. In paragraph 6 thereof, it was also stated that the deceased had a valid driving licence at the time of the accident. By reserving right to
file additional written statement, the appellant had prayed that as the risk is indemnified by the respondent No.1, the liability be shifted on the
respondent No.1.
(7) Accordingly, by virtue of order dated 22.08.2013, the respondent No.1 was impleaded in the claim case and on notice being served, the respondent
No.1 entered appearance in the case and filed their written statement on 28.03.2014, wherein, while taking usual and general plea of denial of liability,
the respondent No.1 had taken a specific plea in paragraph 9 thereof that as per the ejahar, the respondent No.2 had written that on 13.11.2011, her
husband had taken the vehicle from Balapara to Rangia on hire, as conveyed by her husband on reaching Rangia. It was claimed that the vehicle was
being driven for hire, which was in violation of the terms of the insurance policy, which was a “package (private car) policyâ€, which excluded use
of vehicle for hire, as such, the risk of the appellant was not to be indemnified by the respondent No.1, as such, the liability was denied.
(8) While the respondent No.2 examined herself as PW-1, the respondent No.1 examined one DW. On the basis of pleadings, the following issues
were framed by the learned Commissioner:-
Whether the claim petition is maintainable in the present from and manner?
Whether the claimant’s/ petitioner’s husband/ father Sahinur Ali, was workman under the Opp. Party No.1, as per provisions of the
Workmen’s Compensation Act, 1923?
Whether the claimant’s/ petitioner’s husband /father Sahinur Ali, died in a vehicular incident on 13/11/2011 during and in the course of
employment of the opp. Party no.1?
Whether the opposite parties are liable to pay the compensation as claimed by the petitioner’s in their claim petition, if so to what extent and
from whom it is to be payable?
(9) On the basis of pleadings and evidence on record, in respect of issue no.1, the learned Commissioner had held that the deceased husband of the
respondent No.2 was working as driver- employee of the appellant at the time of his death, which was held to be admitted by the appellant, and that
the deceased was earning wages of Rs.6,500/- per month in course of his employment. It was also held that at the time of the murder, the deceased
was discharging his duties and he was kidnapped and murdered by unknown criminals. Therefore, by holding that admitted facts need not be proved, it
was held that the employer and employee relation stood established and that the deceased was held to be a workman of the appellant as per the
provisions of Workmen’s Compensation Act, 1923. In respect of issue No.3, by relying on the case of (a) Margina Begum Vs. Managing
Director, Hanuman Plantation Ltd., 2007 STPL(LE) 39086 SC; (b) Assistant Executive Engineer, Bijapur Vs. Shantavva & Ors., 2003 ACJ 79; and
(c) United India insurance Co. Ltd. Vs. Philo & Ors., 1996 ACJ 849, it was held that the factors specified in Section 3 of the Workmen’s
Compensation Act, 1923 was fulfilled, i.e. firstly, the workman sustained death due to the incident, secondly, it was caused during the course of
employment and, as such, it was held that the liability cannot be escaped. In respect of issue No.4, it was held that the deceased was a bona fide
driver employed by the appellant and that the vehicle went to Rangia as a hired vehicle, which was held to be a violation of the policy condition.
Hence, the respondent No.1 was exonerated from any liability and the appellant was ordered to pay compensation @ Rs.6240/- X 50% X 184.17 =
Rs.5,74,610/- (Rupees Five lakh seventy four thousand six hundred ten only), and a further sum of Rs.5,000/- towards funeral expenses, totaling a sum
of Rs.5,79,610/-, with interest at the rate of 9% from the date of filing of the petition i.e. from 29.08.2012 till realization. It was further ordered that if
compensation was not paid within 30 days, 50% penalty on the award would be imposed.
(10) Challenging the award, the learned advocate for the appellant submits that the solitary evidence of the respondent No.2/ claimant was not enough
to saddle the appellant with any liability because the respondents could not prove by any documentary evidence that the vehicle was being driven on
hire. It is also submitted that the appellant has no property and, as such, the order for compensation would be a mere paper order, as such, the
respondent No.1, who was the insurer of the vehicle was required to pay the entire compensation, moreso, because the car was stolen and could not
be recovered. It is submitted that there was no evidence by the respondent No.1 to show that at the time of the death of the husband of the
respondent No.2, was on duty. All other grounds of the appeal was also pressed by the learned counsel for the appellant.
(11) The learned advocate for the respondent No.1 had submitted that the respondent No.2 had admitted the factum of the vehicle being driven on
hire and, as such, it was a clear case of violation of policy condition, because the package policy was valid only for a passenger car and commercial
use of vehicle for hire was a breach of policy condition. By referring to the written statement of the appellant, it is submitted that the appellant had
candidly admitted the employment and income of the deceased, as such, admitted facts was not required to be proved.
(12) The learned counsel for the respondents No.2 and 3 has submitted that although no stay was granted, but the poor respondents could not get any
compensation even after 7 years from the date of accident, even when the income, employment and murder of the husband of the respondent No.2 in
course of employment was duly proved, without any contrary pleadings or evidence by the appellant and respondent No.1 on record. It is submitted
therefore, the respondent No.2 and 3 had filed I.A.(C) 2812/2017 for out of turn hearing, which was allowed by this Court.
(13) On a perusal of the evidence on record, it is seen that the respondents No.2 examined herself as PW-1 and proved the certified copy of ejahar
(Ext.1), certified copy of prayer by the police before the court of learned S.D.J.M., North Salmara, Abhayapuri to add Sections 302 and 201 I.P.C.
(Ext.2), Certified copy of P.M. report (Ext.3), driving licence (Ext.4), notice under Section 10 of W.C. Act and A/d card (Ext.5), and certified copy of
order dated 05.12.2011 by the learned S.D.J.M., North Salmara, Abhayapuri. In her cross examination by the respondent No.1, she admitted that as
per the ejahar, on 13.11.2011, the deceased had gone with the car of respondent No.2 on hire from Balapara to Rangia.
(14) The respondent No.1 examined one Ashit Kumar Bose, their Administrative Officer as DW-1. He had stated in para-4 of the said affidavit that
as per the writing in the ejahar, the deceased husband of the respondent No.2 was driving the car on hire, which is a violation of the policy condition,
which was for package (private car) policy. The said witness was not cross examined by the appellant to disprove his evidence and no evidence to the
contrary was tendered by the appellant. Thus, the pleadings made by the respondent No.2, and evidence tendered against the appellant by the
respondent No.1 as well as by the respondent No.2 had remained uncontroverted.
(15) Moreover, as stated above, it is reiterated at the cost of repetition that in his written statement, the appellant had categorically and unequivocally
admitted that the deceased was employed as his driver and also categorically admitted that on 13.11.2011, the deceased had died while discharging his
duty with the said vehicle. Moreover, as per paragraph 5 of the said written statement, photocopies of the insurance policy, registration certificate,
fitness certificate and permit of the said vehicle was stated to be enclosed. In this context, it is seen that under the provisions of Motor Vehicles Act,
1988, no “permit†or “fitness certificate†is required for a private vehicle and the same are required only for commercial vehicle, as such, the
appellant is bound by his own admission, which proves that the offending vehicle was being used as a commercial vehicle and as per the contents of
the ejahar (Ext.1), it was well established that the said car was being driven on hire when the kidnapping and murder of the husband of the respondent
No.2 took place.
(16) Thus, in view of the unambiguous admission made by the appellant in his written statement as indicated above, the appellant having admitted that
the deceased was employed as his driver and that on 13.11.2011, the deceased had died while discharging his duty with the said vehicle, the
substantial question of law as referred to herein before, is answered in the negative by holding that the finding of the learned Commissioner,
Workmen’s/ Employees Compensation that the workman was on duty at the time of the accident is not perverse.Â
(17) Hence, this appeal fails and consequently, the judgment and award dated 23.12.2014, passed by the learned Commissioner, Workmen’s
Compensation, Bongaigaon (now Employee’s Compensation, Bongaigaon), in W.C. Case No. 85/2012 is hereby affirmed. The appellant is
required to discharge his burden of paying compensation of Rs.5,79,610/-, with interest at the rate of 9% from the date of filing of the petition i.e. from
29.08.2012 till realization. It is needless to mention that the consequences of failure is already stated in the impugned judgment and award.
(18) Send back the LCR expeditiously.