This appeal is directed against the judgment and order dated 9.10.85 passed by the Commissioner, Workmen's Compensation, North Tripura, Kailashahar passed in TS (Workmen's Compensation) 2 of 1990 (Agartala) and TS (Workmen's Compensation) 5 of 1984 (Kailashahar) questioning the order and findings of the learned Commissioner in awarding compensation against the appellant and exonerating the insurance company from its liability from his payment of compensation arising out of the contractual liability.

2. The present proceeding was initiated at the instance of the parents of the deceased Bishnupada Sharma who was working as an Assistant/Handyman in a Truck bearing No.TRL 2103 owned by opposite party-respondent No.l. On 15.9.79 while the above truck was proceeding from Guwahati towards Agartala through Assam-Agartala Road with load, the said truck met with an accident at Panitila on Assam-Agartala Road- Shri Bishnupada Sharma, Assistant/Handyman of the said truck died due to injury caused to him as a workman by accident arising out of and in the course of his employment. The legal heirs of the deceased accordingly presented a petition before the Commissioner, Workmen's Compensation praying for compensation. In the petition, it has been stated that the monthly wages of the deceased Bishnupada Sharma was Rs.350/- including meal, Tiffin and misc expenses and that the age of the deceased at the time of his death was 25/26 years.

3. The owner of the vehicle has contended, inter alia, that the vehicle in question was insured with the National Insurance Company Ltd and the insurance policy covered all the accidents and damages of the said vehicle. The owner opposite party also disputed the assertion of the petitioner that the deceased was getting a monthly wages of Rs.350/- per month. In their objection, the owner opposite party cited that monthly wages of the deceased was Rs.115/- per month and he was also getting Rs. 8/- per day as fooding charges when the truck was in trip. The National Insurance Company which was impleaded as a party in the proceeding stated that there was no relationship of master and servant between the deceased and the insurance company and there was no breach of contract between the insurance company and the deceased. The learned Commissioner considered the evidence on records and arrived at the conclusion that the deceased was getting monthly wages of Rs. 115/- plus and accordingly awarded the compensation of Rs.l1,520/- as per Schedule 4. The learned Commissioner made an observation that as per the scheme of the Workmen's Compensation Act, the insurance company was not liable to pay.

4. Mr. S. Deb, learned senior counsel appearing on behalf of the appellant referred the various provisions of the Act and submitted that the learned Commissioner erred in law in holding that the deceased was only drawing a salary of Rs. 115/- plus. He has drawn by attention to the pleadings of the parties as well as the evidence on record. He also submitted that the actual person who received the salary was no longer alive. The witness ie PW 1 asserted that the deceased used to draw a salary of Rs.350/- per month inclusive all foodings. When he was cross-examined about the actual wage, the witness stated that deceased Bishnupada Sharma used to get Rs.250/- as wages PM at the time of his death. In cross-examination the witness admitted that he could not produce any receipt in proof of his statement. The owner Smti Alaka Rani Ghosh was not examined, but on her behalf Sri Rabindra Chandra Ghosh, the husband of the owner Smti Ghosh was examined. The said witness stated that he used to look after the transport business of his wife. He admitted that the deceased Bishnupada Sharma was an Assistant under his wife in respect of the vehicle No. 2103 and stated that he used to get Rs.115/- as his salary per month and he used to get overtime allowance while there was over work. The witness deposed that deceased Bishnupada was a temporary employee

Click Here to Read the rest of this document