Indusind General Ins. Co. Ltd. vs Smt. Champa Bagdi & Ors.

Biswaroop Chowdhury, J:

The appellant before this Court was an opposite party in a case under Employees’ Compensation Act 1923 and is aggrieved by the Judgment and Award dated 14-12-2023 passed by Learned Commissioner Employees’ Compensation Court Durgapur in claims case (cc). No. 30 of 2022.

The case of the claimants before the Learned Trial Court may be summed up thus:

Dilip Bagdi since deceased aged about 39 years a workman designated as Khalasi/Cleaner employed by opposite party no-1 Mr. Upender Shaw received personal injury by an accident on the 2^nd day of February 2022 arising out of and in course of his employment resulting in his death on 2^nd day of February 2022. As per the instruction of the opposite party No. 1 the deceased was on duty in his Bolero Pick up van bearing no. WB-39B/9682 and about 2.50 p.m. as per the instruction of the driver of the said vehicle while going to purchase the drinking water bottle near the MAMC Fly over on NH-2 under PS. New Township suddenly one unknown four-wheeler going towards Asansol from the side of Burdwan knocked the Khalasi from behind as a result he got serious injuries and was shifted to S.D. Hospital Durgapur by some local people but the attending doctor declared him as brought dead. An U/D case was lodged with the NTS P.S. vide Case No. 59/2022 dated 02/02/2022 and P.M. was done over the dead body by the M.O. at S.D. Hospital Durgapur. At the time of the accident the vehicle along with its employees were insured under the valid policy issued by the O.P.-2 Insurance Company vide Policy No. 1105221 235000 10202 valid from 2/12/2021 to 1/12/2022.

Pursuant to the filing of the case notice was issued upon the opposite parties. Opposite Party Upendra Shaw although appeared but did not contest the case. Opposite Party Insurance Company contested the case by filing written statement.

ISSUES were framed and evidence was adduced. Learned Commissioner upon considering the evidence adduced and upon hearing the Learned Advocate was pleased to dispose the claim case by observing and directing as follows:-

The appellant Insurance Company being aggrieved by the Judgment and Award passed by the Learned Commissioner has come up with the instant appeal.

Heard Learned Advocate for the appellant Insurance Company and Learned Advocate for the respondents/claimants. Perused the evidence adduced and materials on record.

Mrs. Mukherjee Learned Advocate for the appellant Insurance Company submits that the respondents/claimants failed to establish the relationship of employer employee between the opposite party no-1 and the victim thus the case of the claimants should fail. Learned Advocate further submits that the claimants did not file any documents or adduced any evidence to corroborate the contention that victim was employee under opposite party no-1. Learned Advocate also submits that proof of employer, employee relationship is the first criteria in a case under Employees Compensation Act 1923 which is absent in this case.

Mr. Chakraborty Learned Advocate for the claimants/respondents submits that the claimants adduced evidence to show that victim was an employee of opposite party no-1 and the appellant Insurance Company could not disprove such fact thus the Learned Commissioner rightly allowed the case of the claimants.

As it is rightly submitted by Learned Advocate for the Appellant Indusind General Insurance Company Limited that the first criteria in order to claim compensation is to establish employer-employee relationship it is necessary to consider as to whether the claimants were able to establish that the victim Dilip Bagdi since deceased was employee of the opposite party no-1.

In order to prove the case the claimant no-1 Champa Bagdi adduced oral evidence, stating that her husband Dilip Bagdi was an employee/workman designated as Khalasi/Helper of the Bolero Pick up van bearing No-WB-39A/9682 employed by the owner Upender Shaw. Although the said witness P.W. 1 was cross-examined but in the cross-examination also she stated that her husband was working as a Khalasi in the pick up van of the O.P. No-1 for about 20/25 years. Thus nothing could be shaken in the cross-examination that the victim Dilip Bagdi was employee of O.P. No-1. The necessary particulars of the employer being furnished and the same being reiterated in cross examination inspires confidence in the mind of Court to accept the same.

It is true that there must be a contract of employment but it does not matter whether such contract is express or implied or oral or in writing. In the instant case the claimants could not furnish any copy of the agreement or appointment letter but only adduced oral evidence about engagement of the victim by opposite party no-1. It is well known that in all engagements of employee there may not be written agreement or appointment letter thus in such cases reliance is to be made on the basis of oral evidence and materials on record. It is to be remembered that when an employee suffers injury but is alive he may be able to arrange documents or any witness to corroborate his evidence of employer-employee relation but in case of death of an employee the family members being in a state of depression and required to go from pillar to post for different purposes after the death may not be able to collect documents or arrange for witnesses. In such a case rigid view should not be taken by the Court and if the oral evidence of family members of victim inspires confidence the same should be accepted. The opposite party no-1 owner of Pick-up van bearing registration number WB-39B/9682 appeared in this case and categorically admitted that one Dilip Bagdi son of Sudhan Bagdi was an employee under opposite party no-1 designated as Khalasi/cleaner of the said vehicle, and met with an accident on 02/02/2022. The opposite party Insurance Company did not examine the opposite party owner as its witness to show that the victim was not employee of opposite party no-1, neither the Insurance Company examined any other witness to prove that the case of the claimants is false and a collusion between opposite party no-1 and the claimants. Moreover the evidence of P.W.-1 is corroborated by the statement in F.I.R, where the FIR maker mentioned in the FIR that Dilip Bagdi the victim was Khalasi and on the date of accident the victim got down from the vehicle WB-39B-9682 to bring water and met with an accident. Further The Opposite Party No-2 in their Examination in Chief relied upon the Investigation Report which was filed by OPW-1 in Court during course of cross-examination. Although the said report was not exhibited but the fact the said opposite party relied on the said report they cannot retract from the same.

Upon perusal of the Investigation’s report it appears that the Investigator verified the occupation of the victim and in his report he stated as follows:-

Thus upon considering the Oral evidence, Investigator’s Report and other materials on record the employer-employee relationship is established. Thus the Learned Commissioner did not commit error in allowing the claim case. Thus this appeal should be dismissed.

Hence this Appeal FMA-221 of 2025 stands dismissed. Judgment and Award dated 14/12/2023 passed by Learned Commissioner Employees’ Compensation Court Durgapur West Bengal in claim case No-30 of 2022 is affirmed. The Claimants/Respondents will be entitled to withdraw the compensation deposited upon compliance of necessary formalities.

Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.