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Judgment
1) Heard Mrs. R.D. Mazumdar, learned counsel for the appellants. I have also heard Mr. I.A. Talukdar, learned counsel representing the respondent
nos. 1 and 2. None appears for respondent no. 3.
2) This appeal has been preferred under Section 30 of the Employees' Compensation Act, 1923 (earlier Workman's Compensation Act, 1923),
assailing the judgement and award dated 23/12/2009 passed by the Commissioner, Workman's Compensation, Dhubri in connection with case No.
WC.35/2008 whereby an amount of Rs. 4,84,000/- has been awarded in favour of the claimants/respondent nos. 1 and 2 for the death of the husband
/son of the respective claimants, viz. Aktar Hussain.
3) Although the appeal was admitted by the order dated 27/07/2010 to be heard on as many as four substantial questions of law, yet, during the course
of hearing, Mrs. Mazumdar has submitted that the questions of law Nos. 2, 3 and 4, as reflected in the order dated 21/07/2010, are already firmly
settled due to the subsequent decisions of the Hon'ble Supreme Court as well as this Court and, therefore, need not be gone into by this Court in the
present appeal. The learned counsel has, however, urged the substantial question of law No.1, which is as follows :-
“1. Whether the learned Commissioner was justified in determining the compensation ignoring Rule 28 of the WC Act, 1923.:â€
4) The facts of the case, in brief, is that the husband of the respondent no.1 and son of the respondent no.2, namely, Aktar Hussain was employed as
a Handyman in the truck bearing no. ML-07/9074 owned by the respondent no.3. On 18/03/2008, at about 6 a.m., when Aktar Hussain was waiting by
the road side to board the vehicle for onward journey from Kharuabanda to Meghalaya, the said vehicle, being driven in rash and negligent manner,
had hit Aktar Hussain,who died on the spot. Claiming that the death of Aktar Hussain took place during the course of his employment and had arisen
out of his employment, the respondent nos. 1 and 2 as claimants, had filed WC Case No. 35/2008 praying for an amount of Rs. 12 lakhs as
compensation.
5) The appellant and the respondent no. 3 had appeared in the proceeding before the learned Commissioner and filed their written statement. The
claimants as well as the appellant had led evidence in support of their respective cases. Eventually, the learned Commissioner had decided the claim
petition in favour of the claimants/respondent nos. 1 and 2 by awarding a sum of Rs. 4,48,000/-together with interest calculated @ 6% per annum
from the date of the accident till realization, which was to be divided in the ratio of 70:30 by and between the respondent no. 1 i.e. the wife and the
respondent no.2 i.e. the mother of the deceased.
6) It is not in dispute that the deceased was an employee under the respondent no. 3 who had worked as a Handyman in the truck owned by him.
There is also no dispute about the fact that Aktar Hussain died on 18/03/2018 at about 6 AM on being rammed by the said vehicle while waiting for
the same for onward journey in course of his duty. The post-mortem report brought on record establishes the accidental death of Aktar Hussain
beyond any doubt. There is also no dispute about the fact that the statutory notice under Section 10 of the Act of 1923 had been duly served upon the
employer before instituting the claim proceeding and that the vehicle was duly insured with the appellant Company.
7) Ms. Mazumdar, learned counsel for the appellant has straneously argued that there is no proper determination of the question as to whether the
death of the deceased occurred during the course of his employment and in an incident arising out of his employment within the meaning of Section 3
of the Employees' Compensation Act, 1923. It is the submission of Mrs. Mazumdar that no such determination was made by the learned
Commissioner due to non-framing of issue as per the mandate of Rule 28 of the Workman's Compensation Act, 1923, as a result of which the
impugned award stood vitiated in the eye of law, warranting interference by this Court on such count alone. Mrs. Mazumdar has further argued that
from the materials available on record, it is evident that when the incident occurred, the decease was not engaged in any activity which had arisen out
of his employment and, therefore, viewed from that perspective as well, this is not a case where the insurance company can be fastened with any
liability to pay compensation.
8) Mr. I.A. Talukdar, learned counsel for the respondent nos. 1 and 2 on the other hand submits that the substantial question of law urged by the
appellant in this case stands answered against the appellant in view of the decision of this Court in the case of National Insurance Company Ltd. Vs.
Adori Deb Nath and others reported in 2017(2) GLT 573, wherein, the learned Single Judge has held that non-framing of issues as per Rule 28 of the
Rules of 1923 would not stand in the way of rights and interest of the claimants. He submits that since the appellant has not urged any other
substantial question of law, hence, the appeal is devoid of any merit and, therefore, is liable to dismissed on such count.
9) I have considered the submissions advanced by the learned counsel for the parties and have also examined the materials available on record. It is
no doubt correct that Rule 28 of the Rules of 1923 enjoins a duty upon the learned Commissioner to ascertain upon what material proposition of facts
or law the parties are at variant and, therefore, to frame and record the issues upon which the right decision of the case appears to him to depend. In
the present case issues had not been framed. But it is also to be noted that both the parties had participated in the trial and led evidence being fully
aware of one another's case, without raising any objection as regards non-framing of issues.
10) The purpose of framing issues, it must be remembered, is to enable the parties to lead evidence so as to prove or disprove the fact which they are
bound to prove or disprove in a proceeding. If the parties to the proceeding have lead evidence being fully conscious about the case of the opposite
party, without raising any objection before the Trial Court on the ground of non-framing of issues, than they cannot be permitted later on to assail the
validity of the judgement solely on the ground of non- framing of issues.
11) While dealing with an issue of similar nature, this Court, in Adori Deb Nath & Ors. (Supra), has observed as follows :-
“4. In so far as the non-framing of issues is concerned, which is the requirement of Rule 28 of the Workmen's Compensation Rules, this Court is of
the view that in a case of death and the claim under the said Act, the only relevant issue before the Commissioner, Work-men's Compensation, is as to
whether the death of the victim arose in course of employment for which the employer was liable to pay compensation and the corollary question
whether the employer was duly indemnified by a valid insurance policy at the time when the accident occurred. Therefore, this Court does not find
that the non-framing of issues by the learned Commissioner, Workmen's Compensation, in the present case has caused any serious prejudice to the
appellant because in the present case, the appellant had duly contested the said case by filing the written statement and, as such, they were aware as
to what were the issues in the present case in hand. Therefore, first substantial question of law is answered by holding that the appellant did not suffer
any prejudice while non-framing of issues and, as such, the impugned judgment and award is not liable to be set aside on the said count.â€
12) In view of what has been mentioned above, the substantial question of law urged by the appellant stands answered in favour of the respondent
nos. 1 and 2 and against the appellant.
13) Coming to the question raised by the appellant as to whether the incident can be held to have occurred during the course of employment of the
deceased, it must be noted herein that the learned Commissioner has recorded finding of fact, based on evidence brought on record so as to hold that
the death of the deceased has occurred during the course of his employment. The appellant has not urged any substantial question of law contending
that the findings are perverse to the evidence available on record. Such being the position, I am not inclined to entertain a challenge to the impugned
order at this stage permitting an enquiry on the factual aspects of the matter, more so when the appellant has failed to urge any substantial question of
law pertaining to the said issue.
14) In view of the above, the appeal is held to be devoid of any merit and the same is accordingly dismissed. The appellant would now deposit the
balance 50% of the amount within six weeks from today before the Learned Commissioner, whereafter, the same shall be released in favour of the
claimants after ascertaining their proper identity. Send back the LCR. No order as to costs.