IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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1 Page No.1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Mfa 40 OF 2010 M/S NEW INDIA ASSURANCE CO. LTD. HAVING ITS REGISTERED OFFICE AT NEW INDIA ASSURANCE BUILDING, 87, MAHATMA GANDHI ROAD, FORT, MUMBAI , WITH ONE OF ITS REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH, GUWAHATI-5, REPRESENTED BY ITS CHIEF REGIONAL MANAGER. - Appellant/Claimant 1. KRISHNA KANTA DAS S/O LATE GULAP DAS.. 2.SMTI. JAIMATI DAS W/O. KRISHNA DAS 3. SMTI. DULUMONI DAS W/O. LATE DIGANTA DAS, Versus- 4. DIPSIKHA DAS (MINOR) D/O. LATE DIGANTA DAS, THE MINOR BEING REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMTI. DULUMONI DAS, RESPONDENT NO. 3, ALL RESIDENTS OF VILL- MOHURAMUKH, P.O.- KOMARGAON, DIST- GOLAGHAT, ASSAM. 5. BIPUL DAS S/O LATE R. DAS, R/O PANDU SADILAPUR, P.O.- PANDU, P.S.- JHALUKBARI, GHY- 21, DIST- KAMRUP, ASSAM. - Respondent/Opposite party BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Mr. A Ahmed Advocate for the respondent Mrs. B Talukdar Date of hearing & Judgment: 29 th November, 2016

2 Page No.2 JUDGMENT AND ORDER (ORAL) Heard Mr. A Ahmed, the learned counsel appearing on behalf of the appellant/insurance Company. None of the counsel appearing on behalf of the respondent at the time of hearing on call. 2. The facts in the present appeal are as follows: The respondent as the claimant preferred a claim petition before the Commissioner Workmen s Compensation Act, Golaghat praying for compensation/award on account of death of the husband, Late Diganga Das. The victim died due to injuries sustained in an accident during course of his employment. The claimant pleaded that the deceased son Late Diganta Das was the paid and permanent loader of vehicle bearing No. AS-01-J-1421 (609 Truck) and employed by Sri Bipul Das, the owner of the said vehicle who was impleaded as opposite party No.1 in the said claim petition. 3. The facts of the case is that on at about 9.30 AM the deceased Diganta Das was loading the sand gravel in vehicle No. AS-01-J-1421 (609 Truck) at Rangdhali along with one other labour namely, Diganta Das. Due to sudden land sliding both the labourer came beneath the sand and stones and died on the spot due to injuries sustained. The accident took place during the course of employment. As per the pleadings, the deceased Diganta Das was aged about 25 years and he received an amount of Rs.4000/- per month as monthly wages. The deceased left behind poor wife, parents and minor daughter i.e. the claimants as dependents. Post- mortem examination of deceased was done at Diphu Civil Hospital and the accident was registered by the Borpathar Police (Karbi Anglong) vide G.D.E. No. 559 dated The deceased was the main earning member of the family and accordingly has prayed for compensation. The opposite party No.1 (Bipul Das, owner of the

3 Page No.3 vehicle) on receipt of summons entered appearance, filed his written statement contending interalia that he has already sold the vehicle referred hereinabove to Sri Dharmeswar Sarma. It was his further pleadings that the vehicle was insured with the present appellant, who was the opposite party No.2 in the original proceeding and the policy number was pleaded showing the validity up to with a pleading that the policy stood in his name. However, the relationship of employer and employee was denied by the opposite party No The present appellant and the opposite party No.2 contested the proceeding, filed written statement raising the plea that the claim petition was not maintainable in law. Further it was denied and disputed that the deceased, Diganta Das was not the paid loading and unloading labour of vehicle No. AS-01-J-1421 nor he died due to injuries sustained in an accident arising out of and in course of his employment. The age and wage of the deceased was also disputed. It was further pleaded on the part of the opposite party No.2/appellant that the owner of the vehicle may be directed to submit all the vehicular documents. Finally the opposite party No.2 prayed for dismissal of the claim petition. 5. In the proceeding the claimant, Smti Dulumoni Das, wife of the deceased examined herself as claimant witness by filing his evidence on affidavit and exhibited the accident report, post-mortem report, certified copies of GDE No. 559 dated of Borpathar Police (Karbianglong). She was cross-examined by the appellant/opposite party No.2. However, none of the opposite parties including the present appellant adduced any evidence in the proceeding. Finally, the learned Commissioner awarded a sum of Rs.4,33,820/- only by holding that the appellant/opposite party No.2 is liable to pay the compensation. Being aggrieved, the appellant has preferred this appeal which was admitted on the following substantial question of law: 1. Whether the learned Commissioner is justified in awarding compensation without ascertaining the ownership of the vehicle as well as employer-

4 Page No.4 employee relationship between the registered owner of the vehicle and the deceased? 2. Whether the fixing of liability for payment of compensation by the insurance company suffers from perversity? 6. Mr. Ahmed while arguing in support of the substantial question of law raised that the learned Commissioner failed to take into consideration that there was no relationship of employer and employee between the deceased and the owner of the truck (the insured). Further the learned counsel also argued that the policy was not in the name of the opposite party No.1, Bipul Das rather it stood in the name of one Kabindra Ch. Das and as such the learned Commissioner went wrong in passing the award. The learned counsel also raised the none observation of Section 10(A) by the Commissioner even though it was brought to the knowledge by way of filing written statement that Bipul Das was not the owner rather one Sri Dharmeswar Sarma was the owner. So the award is liable to be set aside. 7. Perused the case record. On perusal, it is apparent that the claimant, Sri Dulumoni Das had filed his evidence on affidavit with the exhibits, exhibit Nos. 1, 2 and 3, respectively, accident report, post-mortem report and extract of GDE No. 559 dated On perusal of the cross-examination by the present appellant with respect to the relation of the employer and employee, with respect to the age of the deceased, with respect to the salary. It is found that except suggestions no direct evidence could be elicited from the mouth of the claimant. On the face of the evidence of the claimant side, the present appellant failed to adduce any evidence nor any official to prove the statements made as a defence in the written statement. Under such circumstances, the learned Commissioner had passed the impugned judgment. Regarding the none ascertaining of the ownership of the vehicle as raised in the substantial question of law there is no material on record to show that the vehicle referred herein was transferred to one Sri Dharmeswar Sarma. In fact, the owner/opposite party No.2, Bipul Das never even came to the witness box to adduce evidence in support of his defence taken in his written statement. Similarly, the appellant as

5 Page No.5 the opposite party No.2, who disputed the policy coverage of the vehicle No. AS-01-J-1421 never even came to the witness box nor to show or nor prove that the particular policy does not cover the vehicle No. AS-01-J In Vidhyadhar vs Manikrao & Another reported in AIR 1999 SC 1441, the Apex Court held that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be examined by the other side, presumption could arise that the case set up by him is not correct. And as such the adverse inference under Section 114 of the Evidence Act, 1872 can be inferred against the appellant opposite party No.2 that the case set up by the appellant is not correct. 8. Keeping in view of the legal position and the inference drawn under Section 114 of the Indian Evidence Act, 1872, the first substantial question of law in my opinion is not sustainable. Similarly with regard to the second substantial question of law, in my opinion, there is no perversity in fixing the liability for payment of compensation by the appellant. Rather there is no piece of evidence which the learned Commissioner left out from considering while coming to the conclusion while awarding the compensation. 9. Mr. Ahmed, learned counsel of the appellant submitted that the matter may be remanded for a denovo trial. In my opinion, this is not a case fit for remanding inasmuch as there is no perversity in deciding the compensation under the Employers Compensation Act. It was also argued by Mr. Ahmed that in violation of the Rules of the Act, the learned Commissioner failed to frame issues and as such it was difficult on the part of the appellant to adduce proper evidence. In my opinion, this ground is also not tenable inasmuch as the appellant had already filed their written statement taking the defence and the appellant was fully aware to the extent it is liable to prove his defence. So no prejudice had been caused to the appellant owing to none framing of the issues. 10. Under such circumstances, this appeal is dismissed.

6 Page No No Cost. 12. Send back the case record. JUDGE Rakhi