UNITED INDIA INSURANCE CO LTD Vs. DAYABAN GOSWAMI

JUDGEMENT

(1.) The present appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short, the Act, 1923) has been filed by the appellant-insurance company assailing the award dated 05.04.2011 passed by the Commissioner for Workmen Compensation, Labour Court, Rajnandgaon, in Case No.52/WC Act/2007/Non-Fatal. Vide the impugned award, the Commissioner in an injury case has awarded compensation of Rs.91,503/- with penal interest @ 7 percent if the amount is not deposited within 30 days before the Commissioner.

(2.) Learned counsel for the appellant at the outset submits that it is a case where the Commissioner has miserably failed to appreciate the fact that the accident which is claimed by the claimant did not occur arise out of and in the course of employment. He submits that the very requirement under Section 3 of the Act, 1923 is that the accident should not only be in the course of and it should also arise out of employment whereas, in the instant case, the claimant's case itself is that the accident occurred when the claimant was sleeping in the cabin of the vehicle when he fell down which by itself shows that it was not duty hours, but it was the rest hours during which time he sustained injuries. Referring to cross examination of the worker, he submits that the claimant himself has accepted the fact that on the fateful day he was not sleeping in the cabin, but was sleeping in an open area which further disproves the accident and the injuries sustained in the course of employment or while sleeping in the cabin of Dumper and for both these reasons he prays for setting aside of the impugned award.

(3.) On the contrary, learned counsel for the respondents submits that the claimant in his evidence as well as in the claim application has stated that he was sleeping in the cabin when he fell down and sustained injuries and that since the place of accident was also the site where the work was going on of the Contractor, it has to be presumed that it was in the course of employment when the accident occurred applying the principle of notional extension. He further submits that the claimant has also filed a cross objection seeking for enhancement of compensation under Order 41 Rule 22 CPC and prayed for dismissal of the appeal and the award amount be suitably enhanced.