Smt. Usha Patel and Others vs Dilip Transport Co. and Others

Arun Mishra, J.—The appeal has been preferred by the claimants aggrieved by an order dated 30.5.2006 parsed by Commissioner for Workmen Compensation, Labour Court, Bhopal passed in case No. 29/04 dismissing the claim petition preferred by the widow and parents of deceased.

The claimants filed the petition before the Commissioner for Workmen. Compensation that Jagdish Patel was driver of tanker (M.P. 04-5509), on 13.4.2004 the tanker was being taken to Ubhayvan road, district Dhar. There was blast in the tanker, due to that Jagdish Patel sustained and died. His age was 45 years. As per claimants the deceassed used to receive salary of Rs. 6,000/- per month. He was holding licence to drive the vehicle. Compensation was not paid inspite of demand was made. Compensation of Rs. 8 lacs was claimed.

The owner Dilip Transport Co. in its reply contended that deceased was not in the regular employment but was temporary driver. He used to work on the basis of daily wages. Other facts were not denied. Deceased used to be paid a sum of Rs. 100/- per day and Rs. 50/- by way of allowance. Excessive compensation was claimed. The vehicle was insured. The liability, if any, was required to be borne by the insurer.

The insurer in its reply denied the liability to make the payment of compensation. The factum of insurance was admitted, however, the claimants to prove that the deceased was in the employment and died owing to the injury sustained in the accident.

The claimants adduced the evidence and examined three witnesses. In rebuttal the respondents did not examine any witness.

By the impugned order the Commissioner for Workmen Compensation has dismissed the case on two grounds, firstly that it was not proved that deceased was in the employment of respondent No. 1 Dilip Transport Co., secondly it was not established that he died due to the injury sustained in the accident.

Following substantial questions of law arise in the appeal:

Whether the finding recorded by Commissioner for Workmen Compensation that the deceased was not in the employment is perverse?

Whether the finding recorded by the Court below that death was not outcome of the injury sustained in the accident and the accident was not proved is perverse?

We have heard the learned Counsel for the parties and gone through the evidence on record.

First we come to the question whether the deceased was in the employment of respondent No. 1, Dilip Transport Co. It passes comprehension that Commissioner for Workmen Compensation has discarded the admission made by respondent No. 1 in the reply filed by it of the application in which it was clearly admitted that deceased/was in the employment on daily wage basis, such workman is covered under the definition of Section 2(n) of the Workmen''s Compensation Act, 1923. Apart from that there was unrebutted evidence adduced by the claimants that deceased was in the employment as stated by Smt. Usha Patel (C.W.1), Hiraman Patel (C.W.2) and Dhirendra Pratap Singh (C.W.3). No evidence in rebuttal was adduced by the respondents, as such we set aside the finding recorded by the Court below that deceased was not in the employment, we have found that he was in the employment as driver, he used to drive the tanker.

Coming to the factum of accident and the injury sustained by deceased in the accident, Smt. Usha Patel (C.W.1) has stated that deceased sustained injury in the accident when he was taking the tanker to Dhar. Superintendent of police, Dhar, has given certificate (Ex.P.2-C) on 10.9.2004 produced by the claimants in which it was mentioned that Jagdish Patel sustained injury due to blast in tanker, he died in the hospital during the treatment, death took place on 17.4.2004 as apparent from the'' documents on record produced by respondents. It appears that death has taken place on 17.4.2004, some discrepancy as to the date on which the accident took place came in the certificate (Ex.P.2-C), however, fact remains that injury was caused in the accident itself. The statement of Smt. Usha Patel (C.W.1) has been supported by Dhirendra Pratap Singh (C.W.3) that cause of death was due to the injury sustained in the accident and also by Hiraman Patel (C.W.2). No evidence in rebuttal was adduced. The factum of accident was not denied by the owner in the reply. No evidence has been adduced by the insurer that accident has not taken place, as a matter of fact after the injury was sustained, initially the claimant was treated at Indore and thereafter he was referred to Bhopal where he died within few days of the accident. Consequently we find hat cause of death was due to blast of the tanker and the injury was caused to the deceased in the accident itself.

Coming to the question of quantum of compensation on the basis of the aforesaid finding, though the claim1 has been made by the aforesaid witnesses that deceased used to receive sum of Rs. 6,000/- per month, he used to drive the tanker, he was driving the tanker at the time of accident also, thus, considering the admission made in the reply by the owner, it would be appropriate to assess the income to Rs. 4,000/- instead of Rs. 4,500/-. The 50% of monthly wage for determination of compensation comes to Rs. 2,000/-, as per Section 4 of the Workmen''s Compensation Act, 1923 where death results from the injury, an amount equal to fifty percent of the monthly wages of the deceased workman has to be multiplied by the relevant factor. In the instant case as the age was mentioned as 45 years in the post-mortem etc. The relevant factor is 169.44, thus, compensation comes to Rs. 2000 x 169.44 - Rs. 3,38,880/-. The claimants are also entitled for interest at the rate of 12% per annum on the aforesaid amount and the penally is quantified al Rs. 20,000/-, the penalty to be paid by the owner. With respect to remaining part the liability is held to be joint & several of owner and the insurer to make the payment.

Resultantly, appeal is allowed in part to the aforesaid extent. No costs.