The insurer is liable for compensation under the Employees’ Compensation Act but not liable for penalty due to employer's personal fault.

JUDGMENT :

S.K. Panigrahi, J.

1. The Appellant, being aggrieved by the judgment dated 07.12.2024 passed in E.C. Case No. 235 of 2023 by the learned Divisional Labour Commissioner-cum-Commissioner for Employees’ Compensation, Cuttack, has preferred the present appeal.

I. FACTUAL MATRIX OF THE CASE

2. The brief facts of the case are as follows:

(i) On 10.08.2023, at about 4:00 A.M., one Ronit Barik, the deceased, was travelling in a TATA ACE vehicle bearing registration number OD-02-CH-8537, which was proceeding towards Cuttack from Bhubaneswar. The driver of the said vehicle parked it on the left side of the road near the Government Timber Depot on the Puri Bypass Road to attend to a call of nature.

(ii) While the deceased was inside the cabin, a Hywa vehicle coming from the opposite direction collided head-on with the TATA ACE and fled the scene. The deceased sustained grievous injuries and was shifted to Capital Hospital, Bhubaneswar, where he was declared dead on the same day.

(iii) In connection with the accident, Badagada P.S. Case No. 434 dated 10.08.2023 was registered.

(iv) Subsequently, E.C. Case No. 235 of 2023 was instituted by the claimants seeking compensation on account of the death of the deceased, alleged to have arisen out of and in the course of employment. The Respondent No. 1 filed a written statement admitting the occurrence of the accident and the death, and further stating that a monthly sum of Rs.12,000 was being paid to the deceased.

(v) The present appellant filed a written statement denying the material averments in the claim application.

(vi) On the basis of the pleadings, the learned Commissioner framed three issues for adjudication. Upon consideration of the materials on record, the learned Commissioner directed the appellant to pay a sum of Rs.15,49,329 within 40 days from the date of the order, failing which the amount would carry a penalty of 50 percent along with interest at 12 percent per annum.

(vii) Aggrieved by this, the appellant has preferred the present appeal.

II. SUBMISSIONS ON BEHALF OF THE APPELLANT

3. Learned counsel for the Appellant earnestly made the following submissions in support of his contentions:

(i) The Learned Commissioner acted illegally and with material irregularity in holding that the deceased was a helper in the offending vehicle and that his death arose out of and in the course of employment, despite the fact that he was the son of the vehicle’s owner. The claimants, by perpetuating fraud, impleaded the father as O.P. No. 1 to claim compensation. The judgment is thus unsustainable and liable to be set aside.

(ii) The Police Report in Badagada P.S. Case No. 434 of 2023 clearly shows that the deceased was the son of O.P. No. 1 and was travelling in the TATA ACE bearing No. OD-02-CH-8537 with the driver and another person on the date of the accident. Nowhere in the Police papers is there any mention of the deceased being employed as a helper under O.P. No. 1. By falsely portraying him as a helper, the claimants secured illegal compensation. The judgment is therefore unsustainable and liable to be set aside.

(iii) The final form reveals that the deceased, Ronit Barik, son of O.P. No. 1, had gone to Bhubaneswar with his friend Jayaram Sahu and driver Sarat Chandra Mallick without informing their families. While returning to Cuttack, both Ronit and Jayaram fell asleep beside the driver. Near the Timber Depot at Kesura, the driver stopped the vehicle to attend to the call of nature. At that time, a Hywa truck coming