NATIONAL INSURANCE CO LTD Vs. NATABAR BEHERA

JUDGEMENT

(1.) THIS is an appeal under Section 30 of the Workmen's Compensation Act at the instance of the Insurance Company. The claimant-respondent No. 1 filed an application claiming compensation of Rs. 60,000/- on the ground that he had sustained injuries in an accident arising out of and in course of his employment under the present respondent No. 2. It was claimed that he was the Helper in Truck bearing number WGB 5841 belonging to respondent No. 2 and on August 24, 1989 while the truck was parked on the left-side of the road due to some mechanical trouble, another truck came from behind and dashed against the truck as a result of which the Driver succumbed to the injuries, but the present claimant- respondent who was the Helper sustained injuries including fracture of right leg below the knee and fracture of left hand below the elbow. He was treated in the hospital for quite some time. The owner in his written statement while admitting about the accident stated that the compensation claimed was on the higher side. It was further stated that the truck in question had been duly insured and the liability, if any, should be met by the Insurance Company. The Insurance Company denied "the allegations made in the claim petition and called upon the claimant to prove his case.

(2.) THE Workmen's Compensation Commissioner (hereinafter referred to as the "commissioner") on discussion of the materials on record came to hold that the claimant was a workman under the present respondent No. 2 and had sustained injuries in the accident arising out of and in course of employment. Considering the loss of earning capacity to be 30 per cent and taking the salary of the claimant to be Rs. 900/-, the Commissioner directed that a sum of Rs. 30,405/should be paid.

(3.) IN this appeal, Mr. N. K. . Mishra, learned counsel for the appeljant has vehemently contended that since the accident occurred at a time when the truck was parked on the road side, it cannot be said that the accident rose out of and in course of employment. He has further argued that from the evidence on record, it cannot be categorically concluded that the claimant was a workman under the owner. It is also contended that the doctor who had examined the claimant has not stated anything about the loss of earning capacity and as such, no compensation is payable.