Appeal against an award granting Rs.5,71,200 compensation to a labourer's family who died during employment. The court modified the award amount to Rs.5,00,000 based on the evidence and submissions.
Compensation awarded to claimants modified from Rs.5,71,200 to Rs.5,00,000; balance refunded to appellant.
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F.A.O. No.266 of 2018
03. 18.4.2018
Heard learned counsel for the parties.
This appeal by the appellant-Insurance Company is directed against the judgment/order dated 12.1.2018, passed by the Commissioner for Employee’s Compensation, Cuttack, in E.C. Case No.100-D of 2016, awarding an amount of Rs.5,71,200/- as compensation, to be deposited within thirty days from the date of judgment.
Learned counsel for the appellant-Insurance Company submits that as there was no credible evidence available on record to establish the employer and employee relationship between the deceased Mohammed Shamim Akhtar @ Sanny and the employerrespondent no.3, the impugned award cannot be sustained. It is submitted that the Commissioner has erred in holding that the deceased died due to electrocution and fell down from the electric pole, which is not supported by materials on record and therefore the impugned judgment is liable to be set aside. It is further submitted that in absence of employment register, wage register and attendance scroll from the employer to establish the actual wage of the deceased, the Commissioner was not justified in accepting the wage of the deceased at Rs.5,100/- per month. It is submitted that in absence of any credible documentary evidence in support of wage of the deceased, the Commissioner should have taken the minimum wage prevalent at the relevant time, for assessing the wage of the deceased, who claimed to be a semiskilled labourer. It is submitted that the insurance policy filed by the employer covers the risk of four semi-skilled workmen with a annual wage for Rs.61,200/-, so the monthly wage of a semiskilled workman covered under the policy is Rs.1,275/-. Therefore, the Commissioner has committed illegality in saddling the entire liability on the present appellant in calculating the monthly wage
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at Rs.5,100/-. It is accordingly submitted that the assessment of the compensation amount is not proper and justified and the award is highly excessive.
Learned counsel for the claimants while supporting the impugned award submits that the same having been passed on appreciation of the evidence available on record, no interference is warranted.
On a perusal of the impugned award, it is seen that on receipt of notice, the employer (respondent no.3) appeared through his authorized person, namely, Chandan Kumar Rout, who examined himself as O.P.W.1 and admitted that the deceased while doing up-gradation work of 11 K.V. line at Mahidharpada was electrocuted and fell down from the pole on 25.11.2014 and was immediately shifted to Hi-tech Medical College and Hospital, where the Doctor declared him dead. He also filed a copy of the work order of respondent No.3 with CESU and the insurance policy. The employer further admitted that he was paying Rs.5,100/- per month as wages to the deceased labourer. It is further seen from the record that the father of the deceased examined himself as P.W.1 and deposed that his son was working under respondent no.3 and died due to electrocution. It is also seen from the record that one U.D. case was registered at Mancheswar police station, vide U.D. Case No.53 of 2014. In support of their claim, the father of the deceased (P.W.1) filed certified copies of U.D. FIR, report of Hi-Tech Hospital, Final Report, Dead body challan, Inquest Report, Inquiry Report, Command Certificate, Post-mortem report along with Voter Identity Card of the deceased, which were marked as Exts.1 to 9. No rebuttal evidence has been adduced by the Insurance Company during cross-examination.
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Considering the evidence available on record, both oral and documentary, including the admission by the employer in his written statement, the Commissioner has proceeded to hold that the claimant was working as a labourer under respondent no.3 and died due to electrocution on 25.11.2014, which arose out of and in course of his employment, which cannot be faulted.
As regard the wages of the claimant, the Commissioner has taken into consideration the admission by the employer in his written statement and in absence of any contrary evidence, he has come to hold that the deceased was earning Rs.5,100/- per month as a semi-skilled labourer under respondent no.3.
Considering the submissions made by learned counsel for the parties and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served if the compensation amount of Rs.5,71,200/- is modified and reduced to Rs.5,00,000/- (Rupees Five lakhs), which is payable to the claimants-respondent nos.1 and 2, on which no interest is payable. The impugned award is modified to the said extent.
The Commissioner for Employee’s Compensation, Cuttack, is directed to disburse the modified compensation amount of Rs.5,00,000/- (Rupees Five lakhs) along with accrued interest thereon to the claimants-respondent nos.1 and 2. The balance deposited amount along with accrued interest thereon shall be refunded to the appellant-Insurance Company.
F.A.O. is accordingly disposed of.
Issue urgent certified copy as per rules.
S.C.Parija, J.
uks
2 issues framed by the court
Whether the impugned award fixing compensation at Rs.5,71,200 be modified given the available evidence and submissions.
Whether the Commission for Employee's Compensation erred in accepting the wage of the deceased at Rs.5,100 per month.
Insurance Company
Claimants (Father of the deceased)
Employer Respondent No.3
S.C. Parija
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
