NATIONAL INSURANCE CO LTD Vs. SABITA GOPE

JUDGEMENT

(1.) The first Appeal No. 115 of 1997, preferred by the National Insurance Company Ltd. is directed against the judgment and award dated March 11, 1997 passed by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala in case No. T.S. (W/C) 29 of 1994 upon a claim petition under the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') awarding compensation to the claimants under the said Act. The Claimants also made a cross-objection against the said judgment and award against the Insurance Company. Both the matters were taken up together for hearing:

(2.) Broad facts are cited herein below:- The deceased Ajit Gope was the son of the Claimant No. 2, Smt Sushama Gope and husband of the claimant No. 1., Smt Sabita Gope. Ajit Gope was a driver of a Truck bearing No. TRL - 3974 owned by Shri Amalendu Saha, Opposite Party No. 1 in the claim petiton. On May 7, 1993 deceased Ajit Gope was sent on duty from Khowai to Guwahati along with P.W.2, Shri Pradip Ghosh who happened to be the Assistant to Ajit Gope. In the morning of May 10, 1993, Ajit Gope and Shri Pradip Ghosh started from Guwahati towards Khowai and reached Patharkandi of Cachar District (Assam). Due to strike they could not proceeded further. At night after taking their meal the said Ajit Gope slept inside the cabin of the truck and Shri Pradip Ghosh, P.W.2 slept on the top of the truck. In the next morning when P.W.2 got down from the truck he saw Ajit Gope lying dead in the cabin of the truck. Pradip Ghosh along with others informed the Patharkandi Police Station about the incident and the police came there and took away the dead body. The claimants accordingly lodged their claim initially before the learned Commissioner for Workmen's Compensation-cum- Assistant Labour Commissioner, Cachar, Silchar, Assam since the accident took place there and in due course the case was transferred under Section 21(2) of the Act to the learned Commissioner, Workmen's Compensation, West Tripura, Agartala since both the claimants and Opposite Parties are residents of Tripura. The National Insurance Company Ltd., the insurer was later on added as opposite party No.2 on amendment. ithe deceased was 25 years old at the tiriie of aciident and his wage was Rs. 20007- per month according to the claimants. Both the Opposite parties, the employer as well as the Insurance Company submitted their written objection. The owner raised the plea of non- maintainability and defect of the parties and also claimed that since the death of the deceased was an un-natural death the claimants were not entitled to get any compensation under the Act. The owner further stated that the vehicle was insured with the National Insurance Company Ltd. and at the relevant time the insurance policy was in force and as such compensation, if any, awarded would be paid by the Insurance Company. The Insurance Company also raised the plea of non-maintainability and denied their liability. According to the Insurance Company the personal injury to the deceased was not caused by accident arising out of employment of the deceased and in the absence of any injury arose out of an accident of a vehicle, the claim petition was not maintainable. The Insurance Company also pleaded that the deceased had no valid driving licence and that the vehicle had no valid fitness certificate at the time of accident and accordingly, prayed for dismissal of the claim petition. The claimants examined the wife of the deceased, Smt. Sabita Gope as well as Shri Pradip Ghosh, the Assistant to the deceased driver, Ajit Gope. The Opposite-parties did not adduce any oral evidence. The claimants also submitted a photo copy of the Insurance Policy apart from the original Employment Exchange Card, School Transfer Certificate of the deceased. The learned Commissioner, Workmen's Compensation after considering the evidence on record accepted the statement that the deceased was earning Rs. 2000/- per month and he was aged about 25 years at the time of accident. The learned Commissioner considered the evidence of P.W.1 as to the wage of the deceased which was also not specifically denied by the owner in any manner in his written objection. The learned Commissioner accepted the evidence of P.W. 1 and P.W. 2 and came to a positive finding that the deceased Ajit Gope went to Guwahati in course of his employment and when he was returning from Guwahati he was very much discharging his duties in course of his employment. He was compelled to halt at Patharkandi during the bandh observed there and as a result he took his meal and slept inside the cabin of the truck. The learned Commissioner further held that the driver could not leave the truck uncared for at night. Because he was found dead on the following morning by the Assistant to the driver and from the evidence of the Assistant nothing came out that the driver died as a result of any untoward incident or attack by any person. The learned Commissioner further observed that there was no evidence on record to show that the deceased driver was suffering from any serious ailment for which he could have collapsed. In the circumstances, the learned Commissioner held that there was reasonable ground to presume that the deceased expired due to excess exhaustion and stress as a result of his constant driving of the truck. The learned Commissioner took note that the deceased was 25 years and he was earning a wage of Rs. 2000/- per month. The learned Commissioner took 216.91 as factor and as per Explanation n under Section 4 of the Act he treated the monthly income of the deceased at Rs. 1000/- only and accordingly, worked out dues of the claim at Rs. 400 x 216.91 = 86 764/-. The learned Commissioner also awarded interest @ 6% per annum on the aforesaid amount of compensation. The Commissioner further awarded Rs. 17353/- towards penalty.

(3.) The Insurance Company in the appeal questioned the legitimacy of the award on the ground that in the instant case the personal injury was hot caused by accident arising out of and in the course of employment of the deceased driver and accordingly, the learned Commissioner fell into error in overlooking the provisions contained in Section 3 of the Act. The claimants on the other hand, in the Cross-Objection-cum-Appeal supported the award but questioned the amount of compensation as well as the amount of interest awarded to the claimants on the misconstruction of the provisions contained in Section 4 of the Act.