DIVISIONAL MANAGER Vs. UMAKANTA BEHERA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated 11.5.2000 passed by the Deputy Labour Commissioner -cum -Commissioner for Workmens Compensation, Cuttack in W.C. Case No.44 -D of 1987 directing payment of compensation of Rs.89,600/ - to the claimant -respondents.

(2.) THE claimants are the legal heirs of the deceased Laxmidhar Behera. The case of the claimants is that on 25.6.1987 the vehicle bearing registration No.OSC 6038, a trekker was being driven by the deceased from Dhamnagar to Bhadrak. Near Brahamabarada another vehicle bearing registration No.ABK -9289 (Truck) dashed from the behind of the trekker as a result of which, the deceased sustained injuries and died on the way to the hospital. The further case of the claimant -respondents is that the deceased was getting salary Rs.1,500/ - per month from the employer and was aged about 20 years at the time of accident. The insurer of the trekker was made an opposite party in this case. The employer/owner of the trekker did not contest the case and the appellant filed a written statement refuting all the allegations made in the claim petition. A specific stand was taken by the appellant in the additional written statement that the vehicle was not covered under the insurance policy on the day it met with an accident and accordingly, the Insurance Company is not liable for indemnifying any compensation payable to the claimants. On the pleading of the parties, the Commissioner framed five issues. With reference to the evidence adduced before it, the Commissioner answering issue Nos.1 and 2 held that the deceased was employed as driver by the owner of the trekker and died due to vehicular accident, which arose, out and in course of employment. Answering issue Nos.3 and 4 the Commissioner also held that the claimants are entitled to compensation. The wage of the deceased was calculated by the Commissioner at Rs.1,000/ - per month and taking the age of the deceased to be 20 years at the time of death, compensation of Rs.89,600/ - was awarded. Issue No.5 relates to the question of liability. The Commissioner held that there as cover note covering the period from 31.7.1987 to 30.7.1988 which was valid under the policy and, therefore, the Insurance Company is liable to indemnify the compensation.

(3.) THE second ground of challenge is concerned, reliance is placed by the learned counsel for the appellant on the cover note issued on 24th June, 1987 as well as the letter dated 28.8.1987 issued by the appellant to the owner. Referring to the cover note, it was contended by the learned counsel for the appellant that the said cover note was issued by an agent of the company after receipt of a cheque for a comprehensive insurance policy of the vehicle. When it was found that the vehicle is of 1978 model and comprehensive policy was not permissible, a letter was written to the owner on 28.8.1987 to return the cover note and to take back the cheque. On the basis of these documents, it was contended by the learned counsel appearing for the appellant that the cheque which had been given by the owner against the cover note was returned to him and had not been encashed by the appellant and, therefore, the cover note will not create any liability so far as the appellant is concerned.