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Judgment
B.P. Routray, J.
Present interim application has been filed praying to recall order dated 5th January, 2023 passed in FAO No.40 of 2022.
Initially FAO No.40 of 2022 was filed by present insurer-Appellant challenging award dated 28th December, 2021 of the Commissioner for Employee’s Compensation-cum-Joint Labour Commissioner, Cuttack passed in EC Case No.429-D/16, wherein compensation to the tune of Rs.10,71,776/- was awarded in favour of the claimant.
The claimant filed the aforesaid claim application stating that he was working as driver in TATA ACE bearing registration number OD-05-M-4918 (the vehicle) owned by Respondent No.2. While working as such, he drove the vehicle from Palasola to Jagatsinghpur on 18th April, 2016. On the way near Gopolo when he got down from the vehicle for urination, at that time one unknown motor cycle dashed him and fled away from the spot. As a result of the same, he sustained severe injuries on his left shoulder and right ankle along with other multiple injuries over his body. The accident took place at 1.30 pm on 18th April, 2016. The claimant was shifted to District Headquarters Hospital, Jagatsinghpur for treatment and thereafter he underwent his treatment in desi(country) method at Kulailo.
The learned Commission upon adjudication of the claim concluded that the claimant sustained injuries in the accident in course of and arising out of his employment as a driver in the vehicle under the employment of Respondent No.2. The learned Commissioner further considering the age, wage, nature of disability and loss of earning capacity of the claimant, directed for payment of compensation to the aforesaid tune in his favour.
Challenging the award, the insurer-Appellant filed FAO No.40 of 2022 before this court. In course of hearing, taking note of the consensus rendered by the Lawyers appearing for both parties, this court disposed of the appeal with a direction for payment of compensation to the tune of Rs.4,00,000/- consolidated. The relevant portion of order dated 5th January, 2023 is reproduced below:-
“3. Upon hearing both the parties and considering the grounds of challenge advanced, a reduced compensation of Rs.4,00,000/- (Rupees Four Lakhs) consolidated is proposed to the parties in course of hearing. Mr. P.K. Mishra, learned counsel for the claimant – Respondent No.1 agrees to the same and Mr. A.A. Khan, learned counsel for Appellant – Insurance Company leaves it to the discretion of the Court. The compensation amount is accordingly fixed to that extent.”
Against the order of this court, the insurer-Appellant preferred SLP(C) No.8255 of 2023 before the Hon’ble Supreme Court. The Supreme Court disposed of the SLP by order dated 1st May, 2023 granting liberty to the insurer to move the High Court with a recall application. The order of Hon’ble Supreme Court dated 1st May, 2023 reads as under:-
“ORDER
Ms. Shantha Devi Raman, learned counsel submits that although the impugned order is a consent order, the concerned counsel of the petitioner-Insurance Company could not have agreed for the consent order for payment of reduced compensation to the claimant as the claim itself was based on fraud as the claimant had never met with any accident. The counsel therefore prays for liberty to withdraw the Special Leave Petition to move the High Court with a recall application.
The Special Leave Petition accordingly stands dismissed reserving the liberty as aforesaid.
If the petitioner is aggrieved by consequential order of the High Court, it is open to the petitioner to challenge the same in accordance with law.”
It is contended on behalf of the insurer that the claimant did not sustain injury concerning any vehicular accident and therefore, he is not entitled to get any compensation under the Employee’s Compensation Act. It is further submitted that the claimant committed fraud on court in order to grab the compensation taking advantage of beneficial provisions of the EC Act. Since no FIR has been lodged nor any police case has been registered regarding the accident and the alleged injury sustained by the claimant, the genuineness of the accident is not proved on record.
To establish fraud on court it must be pleaded specifically on record. A case of fraud has to be pleaded with sufficient details and particulars of fraud must be pleaded as prescribed in Order 6 Rule 4 of the C.P.C. The onus is on the party to prove the fraud who asserts the same. In Harjas Rai Makhija v. Pushparani Jain, (2017) 2 SCC 797, the Supreme Court have observed that:-
“21. What is fraud has been adequately discussed in Meghmala v. G. Narasimha Reddy [(2010) 8 SCC 383]. Unfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao Dagdu Paralkar v. State of Maharashtra [(2005) 7 SCC 605] and State of Orissa v. Harapriya Bisoi [(2009) 12 SCC 378]. In view of the elaborate discussion in these and several other cases which have been referred to in these decisions, it is clear that fraud has a definite meaning in law and it must be proved and not merely alleged and inferred.”
In the case at hand, it has been stated by the claimant that the accident resulting the injuries on his person were caused by an unknown motor cycle and the accident took place at 1.30 pm. It is true that no police case has been registered regarding the accident. Neither the FIR was lodged by the injured – claimant nor by any other person. But that cannot be the only ground to discard entire case of the claimant. In absence of police report, it is necessary to look into other materials brought on record regarding the accident.
The claimant has examined two witnesses to substantiate his case and adduced several documents marked under different exhibits. P.W.1 is the claimant himself and P.W.2 is the treating doctor. P.W.1 has stated in his evidence that, when he got down from the vehicle on that day for urination, the unknown motorcyclist caused the accident and fled away from the spot. After the accident, he was shifted to the local hospital, i.e. District Headquarters Hospital, Jagatsinghpur. This statement of P.W.1 has not been successfully rebutted by the insurer in his cross-examination. The insurer has even failed to put any suggestion to the injured (P.W.1) to the effect that he did not sustain any injury in any vehicular accident. P.W.1 has stood firm in his contention during his cross-examination that he sustained injuries in the accident arising out of and in course of his employment as driver of the vehicle.
P.W.2 has testified that the claimant sustained injuries with the history of road traffic accident on 18th April, 2016 and he sustained physical disability to the extent of 50% with loss of income to the extent of 65%.
O.P.W.1 is the owner of the vehicle under whom the claimant was employed as a driver. In his evidence, he has completely supported P.W1 and stated that the claimant was employed by him as the driver of the vehicle and on that fateful day while he was returning after unloading potato bags met with the accident by the unknown motorcyclist.
Ext.1 is the Out Door Patient ticket dated 19th April, 2016. Perusal of the same reveals that the claimant was brought to the hospital with such injuries due to road traffic accident that took place at 1.30 pm on 18th April 2016. Ext.1 is a public document maintained in a Government Hospital. The insurer has never objected or disputed Ext.1, which has been marked in evidence without objection. Ext.2 is the prescription issued by the treating doctor (P.W.2) which also speaks that the injuries are due to road traffic accident. The X-Ray Plates (M.O.I & II) are dated 19th April, 2016 and showing fracture injuries in respect of the injured – claimant. Thus the evidence of P.W.1 regarding sustenance of injuries by him in the road traffic accident on 18th April, 2016 is found substantiated through documents under Ext.1 & 2 and M.O.I & II.
O.P.W.2 is the witness examined by the insurer. He is the Manager (Legal) of the Insurance Company. He did not have any direct knowledge about the accident and the same is admitted by him in the cross-examination. It is also admitted by said O.P.W.2 that he joined the Insurance Company in April 2020 and the accident took place in April 2016. Therefore, a thorough analysis of the evidences and materials brought from the side of the claimant remains unassailed by any rebuttal material or evidence from the side of the insurer. On the other hand it is established on record that the claimant sustained injuries in the road traffic accident on 18th April 2016 while employed as driver of the TATA ACE bearing registration number OD-05-M-4918.
In the circumstances narrated above, the Appellant-insurer has failed to bring any material on record to reveal any fraud committed on court. The Appellant has also failed to justify his contention that the injured-claimant did not meet with any road traffic accident on 18th April 2016. Nothing is seen there on record to doubt the version of claimant regarding sustenance of injuries by him in the vehicular accident dated 18th April 2016 and nothing contrary has been brought on record to opine otherwise. Conversely, the injured-claimant has successfully established his case regarding sustenance of injuries in the accident dated 18th April 2016 while performing his duties as a driver of the vehicle.
The validity of the insurance policy of the vehicle covering the liability in respect of its owner and employees is not disputed. Taking the wage of the claimant at Rs.8000/- per month and his age at 32 years on the date of accident, the learned Commissioner has determined the loss of earning capacity and directed for payment of the compensation amount accordingly. The computation of quantum of compensation is not questioned by the insurer in the present I.A. Nonetheless, the claimant in course of hearing on 5th January, 2023 has agreed for fixing the compensation at the consolidated amount of Rs.4,00,000/- (four lakhs) and therefore, this court is not going to disturb the same.
In the result the order of this court dated 5th January, 2023 directing the appellant to pay the compensation amount of Rs.4,00,000/- (rupees four lakhs) consolidated is confirmed.
The I.A. is dismissed.
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