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1995 Supreme(Ori) 349
IN THE HIGH COURT OF ORISSA
A. Pasayat, J.
DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD. - APPELLANT
Versus
JASODA SINGH BHADORIA AND OTHERS - RESPONDENT
M.A. No. 653 of 1992
Decided On : 12-05-1995
M. Sinha, G. Sen and S. Singh, for the Appellant; S. Pujari and A.K. Mishra for Respondent Nos. 1 to 3 and A.K. Jena, for the Respondent
The age of the deceased as indicated in the post-mortem report is to prevail unless materials are brought on record to show that the indication of age in the post mortem report is erroneous.
Headnote:
WORKMEN'S COMPENSATION ACT, 1923 - SECTION 2(1)(n) - SECTION 4 - SECTION 294 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - AGE OF THE DECEASED - DRIVING LICENCE - WAGES EARNED BY THE DECEASED - QUANTIFICATION OF ENTITLEMENT - PAYMENT OF COMPENSATION - LIABILITY OF INSURER - INTERPRETATION OF POLICY STIPULATIONS - AWARD OF PENALTY AND INTEREST - SUMMARY
Fact of the Case:
The deceased, Madan Singh Bhadoria, was a driver of a truck owned by Mahabir Prasad Agarwalla. On June 6, 1990, the deceased lost his life in an accident while discharging his duties as a driver. The claimants, the deceased's family members, filed a claim for compensation under the Workmen's Compensation Act, 1923. The owner accepted the employment of the deceased, wages claimed, and the accident. The insurer disputed the age, driving license, and wages of the deceased and denied its liability.
Finding of the Court:
The court found that the deceased was employed by the owner, the accident occurred during the course of employment, and the deceased was 35 years old at the time of the accident. The court also found that the deceased had a valid driving license and that his wages were more than Rs. 1,000/- per month.
Issues: 1. Whether the deceased was employed by the owner? 2. Whether the accident occurred during the course of employment? 3. What was the age of the deceased at the time of the accident? 4. Whether the deceased had a valid driving license? 5. What were the wages earned by the deceased prior to his death? 6. What is the quantum of compensation payable to the claimants? 7. Who is liable to pay the compensation? 8. Whether the insurer is liable to pay penalty and interest?
Ratio Decidendi: 1. The court held that the employment of the deceased was accepted by the owner and there was no evidence to dispute it. 2. The court held that the accident occurred during the course of employment as the deceased was discharging his duties as a driver at the time of the accident. 3. The court held that the age of the deceased at the time of the accident was 35 years, as indicated in the post-mortem report, and there was no material on record to justify departure from this conclusion. 4. The court held that the deceased had a valid driving license as a copy of the driving license was marked as an Exhibit on admission. 5. The court held that the wages earned by the deceased prior to his death were more than Rs. 1,000/- per month, as there was no material brought on record by the appellant to rebut the specific materials placed by claimants, as reiterated by the owner. 6. The court held that the entitlement of the claimants comes to Rs. 77,865/- (400 x 194.64), taking into consideration the age factor. 7. The court held that the insurer is liable to pay the compensation as the vehicle involved in the accident was the subject-matter of insurance with the insurer. 8. The court held that the insurer is not liable to pay penalty and interest as there is a clear stipulation in the policy that the insurer shall not be liable for any interest or penalty imposable in respect of the amount to be identified by it.
Final Decision: The court allowed the appeal to the extent that the entitlement of the claimants was reduced from Rs. 84,716/- to Rs. 77,865/-. The court also directed that the amount of compensation be paid to the claimants in the manner specified in the judgment.
JUDGMENT :
A. Pasayat, J. - New India Assurance Company Limited (hereinafter referred to as the 'insurer') challenges in this appeal u/s 30 of the Workmen's Compensation Act, 1923 (in short, the 'Act') the award made by the Assistant Labour Commissioner-cum-Commissioner for Workmen's Compensation, Cuttack (hereinafter referred to as the 'Commissioner') adjudicating a claim made by Respondents 1 to 3 (hereinafter referred to as the 'claimants'). The claim was made before the Commissioner on the ground that Madan Singh Bhadoria (hereinafter referred to as the 'deceased') was driver of the truck bearing registration No. ORR 1764 belonging to Mahabir Prasad Agarwalla (hereinafter referred to as the 'owner'). Due to an accident on June 6, 1990 where the said vehicle was involved deceased lost his life while discharging his duties as a driver and the accident occurred in course of his employment. Age of the deceased was stated to be 28 years and the monthly wages to be Rs. 1000/-. The owner appeared and filed written statement accepting employment of the deceased, wages claimed and the accident. His stand was that the vehicle involved in accident was the subject-matter of insurance with the insurer, and the award, if any, was to be indemnified by it. The insurer filed written statement disputing the age, and generally denying its liability since the owner has to prove the factum of accident, existence of policy to cover the vehicle, the wages and such other relevant aspects. On appreciation of evidence led before him the Commissioner came to conclude that the accident took place during the course of employment of the deceased and taking his age to be 28 years and income at Rs. 1,000/- he quantified the entitlement of the claimant at Rs. 84,716/-
2. In the present appeal it is stated that the employment of the deceased as claimed is not acceptable as the owner-Respondent No. 4 has not produced any document before the Commissioner in that regard. Further materials on record do not establish that deceased has a valid driving licence. The age of the deceased having been found to be 35 years in the post-mortem report and the inquest report, finding the age at 28 years as done by the Commissioner is also assailed. It is further stated that in view of clear stipulation in the policy, penalty and interests are not to be indemnified by the insurer if levied by the Commissioner, the observations by the Commissioner in that regard are not sustainable.
3. Mr. B. Pujari, learned counsel for claimants, submitted that the Commissioner has given cogent reasons for fixing the age at 28 years. According to him, observation of the Commissioner that the age indicated in the post-mortem report is outcome of guess work is correct. It is also pleaded that the documents filed clearly go to show the competency of the deceased to drive the vehicle.
4. So far as the driving licence aspect is concerned, I find that the copy of driving licence was marked as an Exhibit on admission. While exercising appellate jurisdiction u/s 30 of the Act which restricts consideration to substantial question of law, I decline to accept the factual dispute relating to validity of the driving licence without any definite materials to affect its authenticity.
So far as the age of deceased is concerned, the Commissioner took the age to be 28 years with the conclusion that the age indicated in the post-mortem report is merely a guess work. To say the least, the conclusion is presumptuous and without any basis. Sanctity is to be attached to the age indicated by the experienced and qualified doctor, who issued the post-mortem report. Unless materials are brought on record to show that the indication of age in the post mortem report is erroneous, the age indicated in the post mortem report is to prevail. In terms of Section 294 of the Code of Criminal Procedure, 1973 (in short, the 'Code') a post-mortem report can be read as substantive evidence in a criminal trial (under Sub-section (3)) i
