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RAJASTHAN HIGH COURT
Jaipur Bench
Oriental Insurance Co. vs. Smt. Badami Devi (Trivedi, J.)
HON'BLE BELA M. TRIVEDI, J.
Oriental Insurance Co.Ltd.
Versus
Smt. Badami Devi & Ors.
S.B. Civil Misc. Appeal No.737 of 2012, decided on 23.04.2012
¼d½ deZpkjh izfrdj vf/kfu;e] 1923] /kkjk 30¼1½ ¼la'kksf/kr vf/kfu;e 45 o"kZ 2009½ & chekdrkZ }kjk vihy & iks"k.kh;rk ds laca/k esa vk{ksi & rdZ fd vihykFkhZ us vihy ds eseksjsUMe ds lkFk C;kt jkf'k ds Hkqxrku ds laca/k esa vk;qDr dk izek.k i= izLrqr ugha fd;k & vfHkfu/kkZfjr & 'kCn ^chekdrkZ* deZpkjh izfrdj vf/kfu;e ds fdlh Hkh izko/kkuksa esa u ifjHkkf"kr u gh iz;ksx fd;k x;k gS & 'kCn ^chekdrkZ* fu;ksDrk dh ifjHkk"kk esa lfEefyr Hkh ugha fd;k x;k gS & chekdrkZ fcydqy fHkUu bdkbZ gS & tc fof'k"V 'kCn ^fu;ksDrk* /kkjk 30¼1½ ds r`rh; ijUrqd esa iz;qDr fd;k x;k gS ;g vuqeku ugha fd;k tk ldrk fd fu;ksDrk ls uke ek=k ds laca/k ds vk/kkj ij chekdrkZ dks vihy ds eseksVsUMe ds lkFk vk;qDr dk izek.k i= is'k djuk visf{kr gS & vnkyrksa dks vf/kfu;e ds Li"V 'kCnksa ds izfrdwy dksbZ fuoZpu ugha djuk pkfg;s & bl izdkj] chekdrkZ }kjk vihy iks"k.kh; gSA
¼in la[;k 12 ,oa 21½
(b) Employees Compensation Act, 1923, Secs. 3 & 30 (As amended by Amendment Act, 45 fo 2009) — Death of driver in motor accident during employment — Liability of insurance company — Commissioner held liable only insurance company to pay compensation — Appeal by insurer — Contention that deceased died due to electric shock and said vehicle was not involved in the accident, which has to prove from FIR, Panchnama and postmortem report — Further contention that it also not shown that deceased was the employee of respondent No. 4 — Held — Claimants had failed to prove that deceased was the employee of the respondent No. 4 — There was casual connection between the injury and alleged accident — Appellant-insurance company had proved by producing cogent evidence that death had occurred due to electric shock — Commissioner has not only ignored the settled legal position but has also ignored the contentions raised by appellant — Impugned order is absolutely illegal and perverse therefore, set aside — Appellant shall be at liberty to withdraw the deposited compensation amount. (Paras 23 & 25)
Appeal allowed.
deZpkjh izfrdj vf/kfu;e] 1923] /kkjk 3 ,oa 30 ¼la'kksf/kr vf/kfu;e 45 o"kZ 2009½ & fu;kstu ds nkSjku okgu nq?kZVuk esa pkyd dh e`R;q & chek daiuh dk nkf;Ro & vk;qDr us flQZ chek daiuh dks izfrdj Hkqxrku djus gsrq nk;h Bgjk;k & chekdrkZ }kjk vihy & rdZ fd e`rd fo|qr vk?kkr ds dkj.k ejk ,oa dfFkr okgu nq?kZVuk esa fyIr ugha Fkk tks izkFkfedh] iapukek ,oa 'ko ijh{k.k fjiksVZ ls lkfcr gksrk gS & iqu% rdZ fd ;g Hkh ugha n'kkZ;k x;k fd e`rd izfroknh la[;k 4 dk deZpkjh Fkk & vfHkfu/kkZfjr & nkosnkjx.k lkfcr djus esa vlQy gq;s fd e`rd izfroknh la[;k 4 dk deZpkjh Fkk & ;gka dfFkr nq?kZVuk ,oa pksV ds chp vkdfLed laca/k Fkk & vihykFkhZ chek daiuh us rdZ laxr lk{; izLrqr djrs gq, lkfcr fd;k fd e`R;q fo|qr vk?kkr ds dkj.k ?kVh & vk;qDr us u flQZ LFkkfir fof/kd fLFkfr dks vuns[kk fd;k cfYd vihykFkhZ }kjk mBk;s x;s rdksZ dks Hkh vuns[kk fd;k & vkyksP; vkns'k fcydqy voS/k ,oa izfrdwy gS vr% vikLr fd;k x;k & vihykFkhZ tek dh xbZ izfrdj jkf'k izR;kgj.k djus gsrq Lora= gksaxsA ¼in la[;k 23 ,oa 25½
vihy LohdkjA
2. When the appeal was put up for admission hearing, a preliminary objection was raised by the learned advocate Mr. Vinay Mathur for the respondent Nos. 1 to 3 as regards the maintainability of the appeal, pressing into service the third proviso to Section 30(1) of the E.C. Act by submitting that the appellant-Insurance Company had not produced the certificate of the Commissioner regarding payment of the interest amount alongwith the memorandum of appeal. The matter thereafter was heard finally at the admission stage with the consent of the learned counsels for the parties.
3. The short facts giving rise to the present appeal are that the respondent Nos.1 to 3 (original claimants) filed the claim petition before the Commissioner on 22.2.08 alleging interalia that Shri Omprakash Singh son of respondent No.1, husband of respondent No.2 and father of respondent No.3 was working as driver on the vehicle with steel tank No. New-07-E-240017, under the employment of the respondent No.4, the owner of the vehicle. It was further alleged that on 4.2.08 at about 11.30 A.M., an accident took place out of the use of the said vehicle and the said Omprakash Singh sustained injuries and died as a result of the said injuries on 7.2.08. The respondents-claimants had, therefore filed the claim petition claiming compensation of Rs. 6,55,410/- with interest @ 12% per annum against the appellant and the respondent No.4 (non-claimants). In the said claim petition, the respondent No.4 did not appear, however the claim petition was contested by the appellant (non-claimant No.2), contending interalia that no such accident as alleged had taken place and the deceased Omprakash Singh had died as a result of electric shock received by him from the high tension wire, and not as a result of any accident out of the use of the vehicle in question. It was also contended that the deceased was not the employee of the respondent No.4 and a false claim was made by the claimants involving the vehicle in question in order to get the compensation. The commissioner allowed the claim petition of the claimants against the appellant-Insurance Company only awarding the compensation as stated hereinabove by the impugned award. Being aggrieved by the said award, the appellant-Insurance Company has preferred the present petition under Section 30 of the E.C. Act.
4. The learned counsel Mr. R.P. Vijay appearing for the appellant-Insurance Company has vehemently submitted that a false claim was made by th respondents-claimants before the Commissioner involving the vehicle in question, colluding with the respondent No.4, the owner of the vehicle, who deliberately did not appear before the Commissioner. He further submitted that there was no evidence to show that the deceased was the employee of the respondent No.4 and that the deceased expired as a result of the accident which occurred out of the use of the said vehicle and during the course of employment of the respondent No.4. According to him, none of the docu-ments on record suggested that the accident had taken place in the manner alleged, but on the contrary it had emerged that the deceased had died due to the electric shock only. Placing heavy reliance on the decision of the Supreme Court in case of Malikarjuna G. Hiremath vs. The Branch Manager, The Oriental Insurance Co. Ltd. and Anr
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