NEW INDIA ASSURANCE CO LTD Vs. MAYA DEVI

JUDGEMENT

(1.) Both the present appeals have been filed against the order dated 30.12.1996 of Workmen's Compensation Commissioner (SDM), Solan District whereby on a petition filed by Maya Devi and others, dependants of late Prem Lal, a sum of Rs. 2,19,950 has been awarded on account of compensation and the money has been ordered to be paid with interest at the rate of 12 per cent per annum from the date of the compensation amount fell due to the date of the decision (the date of the order of Commissioner). Order of payment of penalty at the rate of 10 per cent, the amount of which has been worked out at Rs. 21,995 has also been passed. One appeal has been filed by the insurance company, i.e., F.A.O. (WCA) No. 73 of 1997 and the other by the insured and its number is F.A.O. (WCA) No. 150 of 1997.

(2.) Facts relevant for the disposal of the two appeals may be noticed. Late Prem Lal, aged about 23 years was employed with R.R. Thakur, the appellant in F.A.O. (WCA) No. 150 of 1997 to drive his truck No. HP-07 2517. This appellant had insured himself with appellant in the other appeal, namely, New India Assurance Co. Ltd., for his indemnification for the payment of the compensation to his employees engaged in connection with the operation of the truck in the event of any of his employee dying or sustaining any injuries in the accident of the said truck. The truck met with an accident on 15.4.1996. Said Prem Lal, the driver, died in that accident. No compensation was paid to the dependants of said Prem Lal, driver within one month's time prescribed under section 4-A of Workmen's Compensation Act for the payment of the compensation. The insured, i.e., the owner of the truck intimated the insurer about the occurrence of accident on 11.6.1996. When no compensation was paid either by the insured or his insurer, even after the intimation of the fact of the accident by the insured to the insurer the dependants of said Prem Lal, i.e., his mother and a minor sister and a minor brother, filed a petition, under section 22 of Workmen's Compensation Act, before the Workmen's Compensation Commissioner (SDM), Solan. This petition was filed on 19.7.1996. In the petition, it was alleged that the deceased used to be paid Rs. 3,000 a month as salary and in addition to that he was paid daily allowance at the rate of Rs. 80 by his employer, i.e., appellant in F.A.O. (WCA) No. 150 of 1997. Notices were issued to the insured and the insurer who were impleaded as respondent in the said petition. Insured did not appear and was, therefore, ordered to be proceeded against ex parte. Insurer filed the reply, contesting the claim petition. Various technical objections were raised, which are of no relevance for deciding these appeals, because the decision of the Commissioner qua those objections had not been assailed in either of the two appeals. On merits, the insurance company took the plea that income of the deceased was only Rs. 1,500 a month and nothing was paid to him on account of daily allowance.

(3.) The Commissioner framed issues and afforded opportunity to claimants as also the insurer to adduce evidence. Claimants examined two witnesses, one doctor who conducted the post-mortem of the body of deceased Prem Lal and the other was the mother of the deceased, one of the claimants. The insurer produced a copy of the prescribed form, on which the intimation was given to it by the insured, as also the affidavit of the insured, per which the income of the deceased was only Rs. 1,500 per month on account of his salary as an employee of the insured. Thereafter, the Workmen's Compensation Commissioner heard the arguments and posted the case for final order. After the hearing of the arguments, but before the pronouncement of the final order, insured made an application under Order 9, rule 7 of the Civil Procedure Code for setting aside the order of ex parte proceedings. The Commissioner dismissed the application vide order dated 7.12.1996 with the observation that final arguments having already been heard in the claim petition and the matter listed for final order, the said application was not competent.