Dismissed

Sunaina Devi v. the Divisional Manager National Insurance Company Ltd.

Jharkhand HC23 Mar 2023MA/10/2022

Case brief

AI extract

What is this about?

Hon'ble High Court of Jharkhand dismissed the miscellaneous appeal against the Labour Court's compensation award. The Court held there was no substantial question of law as the appellants failed to aver justification for payment delay or food allowance in the claim, making penalty discretionary and quantum enhancement unviable.

What did the court decide?

Appeal dismissed; no costs awarded served with copy.

Sunaina Devi Vs the Divisional Manager National… — Service and Employment | Jharkhand HC (2023)

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M.A.No.10 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.10 of 2022

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(Against the Judgment and Order dated 03.08.2021 passed by Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi passed in W.C. Case No.07 of 2017)

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Sunaina Devi aged about 35 Years W/o Late Sanjay Kumar Rai.

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Swecha Kumari aged about 13 Years Minor daughter of Late Sanjay Kumar Rai

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Pratik Kumar aged about 11 Years D/o minor Son of Late Sanjay Kumar Rai.

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Kamla Devi age about 60 Years W/o Late Prahlad Rai.

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Appellant No. 2 & 3 are represented through Appellant No.1 All Resident of Village Bhurkunda, P.O. Dewari, P.S. Bhurkunda, District- Ramgarh at present R/o C/o Jukeshwar Mahto, Pandra, P.O. Hehal, P.S. Pandra O.P. Sukhdeonagar District- Ranchi.

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.... …. Appellants/Applicants

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Versus

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1. The Divisional Manager, National Insurance Company Ltd, Saheed Chowk, Near Gangaur Sweet, 2^nd Floor, Kutchery Road, Ranchi P.O. GPO, P.S. Kothwali Dist- Ranchi 834001.

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Madhu Prasad Sahu, S/o D.P. Sahu R/o Kaju Bagan, Laxmi Nagar, P.O. Hehal P.S. Sukhdeonagar, Distt- Ranchi. 834005

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.... …. Respondents/Opposite Parties

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For the Appellant : Ms. Saumya Pandey, Advocate For the Respondent No.1 : Mr. Amaresh Kumar, Advocate For the Respondent No.2 : None

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P R E S E N T

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court : - Heard the parties.

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No one turns up on behalf of the respondent No.2 in spite of

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M.A.No.10 of 2022

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repeated calls, hence, this appeal is heard and disposed of ex-parte against the respondent No.2.

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This Miscellaneous Appeal, under Section 30 (1) (a) & (aa) of the Employees’ Compensation Act, 1923 has been preferred against the Judgment and Order dated 03.08.2021 passed by Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi passed in W.C. Case No.07 of 2017 whereby and where under the learned Commissioner has awarded a compensation of Rs.9,76,249/- to the claimants.

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The brief fact of the case is that the deceased- Sanjay Kumar Rai was a driver. He was employed on the truck owned by the opposite party No.1. On 16.09.2016 at 3:00 am while the deceased was going from Ranchi to Hazaribagh, the truck met with an accident and turned turtle resulting in the said Sanjay Kumar Rai sustaining grievous injuries on his person and he succumbed to the injuries at the spot itself. The claimants are dependants of the said deceased. The claimants claimed that the monthly income of the deceased was Rs.6,000/- per month from his work. Besides he was getting food allowance (Khuraki) of Rs.200/- per day. The deceased was aged 32 years at the time of his death.

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The opposite party No.1- owner of the truck, in his written statement, admitted that he engaged the deceased- Sanjay Kumar Rai as a driver in his truck and he admitted the salary paid to be Rs.6,000/- but pleaded that since the vehicle was insured with the opposite party No.2National Insurance Company Limited, hence the Insurance Company is liable to pay the compensation.

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The opposite party No.2- Insurance Company admitted that it insured the vehicle but denied employer-employee relationship between the opposite party No.1 and the deceased- Sanjay Kumar Rai.

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On the basis of the rival pleadings of the parties, the learned Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi settled the following five issues:-

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(i). Whether the case filed under the provisions of W.C. Act is maintainable in the present form?

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(ii). Whether deceased Sanjay Kumar Rai died on 16.09.2016 due to use of vehicle truck bearing registration no. JH01K-2042 and during the

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M.A.No.10 of 2022

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course of employment working as the driver of the said truck?

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(iii). Whether applicants are entitled for compensation as claimed, if yes to what extent and by whom it is payable?

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(iv). Whether there is any violation of terms and conditions of Insurance Policy either by the deceased driver or opposite party no.1?

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(v). Whether the claimants are entitled for interest @ 12 % p.a. from the date of accident of the case and also entitled to penalty and cost of the case?

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In support of their case, the claimant examined the claimant No.1 as sole witness and produced the documents which have been marked as Ext. 1 to Ext. 7 while the opposite party Nos.1 and 2 did not adduce any evidence.

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The learned Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi first took up issue No.(ii) and after considering the evidence in the record, came to the conclusion that it has been proved that the death of the deceased- Sanjay Kumar Rai took place due to accident on 16.09.2016 during the course of his employment working as a driver of the vehicle being the truck.

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The learned Presiding Officer, Labour Court-cum Commissioner, Employee’s Compensation, Ranchi then took up issue Nos.(i), (iii) and (iv) together and considering the materials in the record, came to the conclusion that the case as filed by the claimants, is maintainable in its present form and the applicants are entitled to get compensation. The Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi assessed the age of the deceased to be 32 years, on the basis of the age of the dead body of the deceased, mentioned in the post-mortem report. Considering the oral testimony of the sole witness examined by the claimants that the deceased used to give her Rs.6,000/per month and in the absence of any documentary evidence regarding any food allowance (Khuraki) being paid by the employer to the deceased and as the employer has not stated anything in his written statement to suggest that besides his salary, he was also paying food allowance (Khuraki) to the deceased, the Presiding Officer, Labour Court-cumEmployee’s Compensation Commissioner, Ranchi did not believe that any food allowance (Khuraki) was paid to the deceased and assessed his monthly income as Rs.6,000/- and awarded the said compensation.

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M.A.No.10 of 2022

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Ms. Saumya Pandey- learned counsel for the appellants submits that the Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi erred by not directing payment of penalty even though there was no justification for the delay in payment of the compensation amount. It is next submitted that the Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi erred in not accepting the contention of the appellant that besides the salary, the deceased was earning Rs.200/- per day as food allowance (Khuraki). Hence, it is submitted that appropriate substantial question of law be formulated and the quantum of compensation awarded to the claimants be enhanced.

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Mr. Amaresh Kumar- learned counsel for the respondent No.1 on the other hand submits that there is no averment made by the claimants in the claim application that there was no justification for any delay in default of the employer in paying the compensation and in the absence of any averment being made; there was no occasion for the Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi to delve into to the realm of the Section 4 A (3) (b) of the Employees’ Compensation Act, 1923, hence, no fault can be found with the decision of the Commissioner. It is next submitted that the evidence in the record do not suggest payment of any food allowance (Khuraki) as the claimant No.1 who has been examined as the sole witness on behalf of the claimants, has only stated that the deceased used to give her Rs.6,000/per month for the family. Hence, it is submitted that no substantial question of law involved in this appeal which is a sine qua non for maintaining an appeal filed under Section 30 of the Employee’s Compensation Act, 1923. Hence, it is submitted that this appeal, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to refer to Section 4 A (3) (b) of the Employees’ Compensation Act, 1923 which reads as under:-

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“4-A. Compensation to be paid when due and penalty for default- (1) Compensation under section 4 shall be paid as soon as it

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M.A.No.10 of 2022

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falls due.

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(2) xxxxx.

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[(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall—

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(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

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(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty:

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Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.

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Explanation.—For the purposes of this sub-section, “scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934).”

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The bare perusal of Section 4 A (3) (b) of the Employees’ Compensation Act, 1923 makes it crystal clear that imposition of penalty is subject to condition that the Commissioner must form an opinion that the delay in making payment has been without any justification therefor. It is evident that imposition of penalty is discretionary and penal in nature. Thereby, a proviso has been made that before such imposition of penalty, the employer has to be given a reasonable opportunity to showcause why such penalty be not imposed.

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Now, coming to the facts of the case, it remains undisputed that there is no averment in the claim application by the claimants regarding any claim by way of penalty. There is no averment that there was no justification for the employer in default in paying the compensation due under the Act. Under such circumstances, the act of Presiding Officer, Labour Court-cum-Employee’s Compensation Commissioner, Ranchi in not forming an opinion that delay in making payment has been without any justification cannot be said to be perverse.

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So far as the contention of the appellants regarding nonconsideration of the daily food allowance (Khuraki) is concerned, after carefully going through the evidence in the record, this Court finds that

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M.A.No.10 of 2022

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the sole witness examined by the claimant has not deposed about the daily allowance of ₹ 200/-. The employer has also not stated in his written statement about the payment of any daily allowance. Under such circumstances, the finding of the Employee’s Compensation Commissioner, cannot be said to have been arrived at by ignoring or excluding the relevant materials or by taking into consideration any irrelevant material nor the finding so outrageously defies the logic as to suffer from the vice of irrationality, incurring the blame of being perverse. 17. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal. 18. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances, without any costs. 19. Let a copy of this judgment be sent to the court concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 23^rd of March, 2023 AFR/ Animesh

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Sunaina Devi v. the Divisional Manager National Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Sunaina Devi v. the Divisional Manager National Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

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