Dismissed

MD M/S.Consolidated v. Banita Naik

Orissa HC14 Aug 2018FAO/91/2014

Case brief

AI extract

What is this about?

Four First Appeals filed by an employer against a Deputy Labour Commissioner awarding compensation for workmen killed in a vehicle accident. The core dispute concerned employer liability and the appreciation of evidence regarding the deceased employees' employment status.

What did the court decide?

The appeals stand dismissed. The impugned judgments/awards are confirmed, and the Commissioner is directed to disburse compensation with interest.

MD M/S.Consolidated Vs Banita Naik — Writ and Judicial Review | Orissa HC (2018)

¶1

FAO No.91 of 2014

¶2

FAO No.91 of 2014 FAO No.92 of 2014 FAO No.93 of 2014

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AND

¶4

FAO No.94 of 2014

¶5

14.08.2018 Heard Mr.K.Rath, learned counsel for the appellant and Mr.B.Mohanty, learned counsel for the respondents in all the FAOs.

¶6

These appeals were listed for orders, but in view of the order passed today in misc. cases filed for fixing of an early date of hearing of the appeals, the same had been taken up for hearing and final disposal on consent of the learned counsel for the parties.

¶7

All these appeals since arises out of the common judgment passed by the Deputy Labour Commissioner-cum-Commissioner for Employees Compensation, Cuttack upon analogous hearing of W.C. Case Nos.155-D, 157-D, 158-D and 159-D of 2012; as agreed upon by the learned counsel for the parties, those have been taken up together for hearing for their disposal by this common order.

¶8

The appeal, filed by the appellant-employer, is directed against the judgment/award dated 19.08.2013 passed by the Commissioner for Employees Compensation, Cuttack awarding a sum of Rs.7,15.803/- in W.C. Case No.155-D of 2012, Rs.6,07,761/- in W.C. Case No.157-D of 2012, Rs.5,05,197/- in W.C. Case No.158-D of 2012 and Rs.7,20,951/- in W.C. Case NO.15-D of 2012 as compensation to be deposited within thirty days along with interest @ 12% per annum from the date of death of the employee in the accident, i.e, 6.5.2012 till deposit.

¶9

These appeals have been admitted on the following substantial question of law:

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“1.Whether the finding recorded by the Commissioner in respect of Issue Nos.1 and 2 taken

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// 2 //

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together for decision, is the coutcome of perverse appreciation of evidence inasmuch as by totally sidetracking the evidence of P.W.5 which, if could have been taken into account in its proper perspective, the finding would have been otherwise.”

¶13

Learned counsel for the appellant submitted that the Commissioner has erred in recording the finding that it is this appellant, who was the employer of those deceased persons who met their death in the vehicular accident taken place on 6.5.2012 in course of their employment. He further submitted that the finding recorded by the Commissioner in respect of Issue Nos.1 and 2 taken together for decision is based on perverse appreciation of evidence inasmuch as the Commissioner has not duly taken into consideration the evidence of P.W.5 and that, if would have been taken into account in its proper perspective, the finding would have been to the contrary by way of exenoration of the appellant from the liability in respect of payment of compensation for said death of the so-called employees.

¶14

It is submitted that P.W.5 is none other than a co-employee and when during his cross-examination, he has clearly stated that he as well as those deceased persons were the employees of M/s.Nirmathi Enterprises, the Commissioner could not have overlooked such important evidence in going to saddle the liability of payment of compensation upon the appellant holding it to be the employer of the deceased persons at the relevant time of accident and saying that the same has taken place in course of their employment. In this connection, he has invited the attention of this Court to the deposition of P.W.5 especially to that part recorded during cross-examination from the side of the appellant. He, therefore, submitted that the ultimate finding recorded by the Commissioner holding the appellant to be the employer of the deceased persons at

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// 3 //

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the relevant time of the accident in course of their employment resulting their death is thus liable to be set aside and in the fact and circumstances of the case, the matters be remanded to the Commissioner for fresh disposal of the cases in recording a finding on issue nos.1 and 2 afresh after due examination of evidence on record upon their just and proper appreciation.

¶17

Learned counsel for the claimant-respondents, while supporting the impugned judgment/award, submitted that the same having been returned on just and proper appreciation of evidence on record, no interference is warranted. He further submitted that the evidence of P.W.5, which is being highlighted by the learned counsel for the appellant has not lost sight of the Commissioner but the same having been taken into consideration with other evidence available on record, and tested with the circumstances emanating from evidence, the Commissioner has recorded the finding assigning the very good reasons which under no circumstance can be said to be perverse.

¶18

The case of the claimants is that those deceased employees were working as labourers under the appellant, i.e., M/s.Consolidated Construction Consortium Limited (for short, hereinafter called as “C.C.C.L”) inside the factory premises of M/s.Mangalore Refinery Petro Chemical (in short, hereinafter referred to as “MRPL”) being engaged in construction work therein. It is their further case that on 6.5.2012, those deceased employees, after discharging their duties as labourers for half of the day, were returning in a vehicle provided by the appellant to their rest shed, when on the road around 2.30 pm, the vehicle capsized resulting the death of eight workmen and injuries on the persons of other thirteen workmen. The appellants’ case is that of simple denial of the relationship and consequently it is contended that it has no liability in the matter of payment of compensation. Although it is admitted that the appellant-company was engaged in the

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// 4 //

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construction of work of MRPL having their site office near the work premises of MRPL with engagement of around 400 workers for the purpose of execution of work of MRPL Phase-III, no such document have been filed to disprove the claim of the respondent-claimants. The appellant having not produced any document either oral or documentary in connection with the relation to the work and engagement of the workmen therein; the Commissioner has rightly drawn adverse inference. The witness examined on behalf of appellant as O.P.W.1 when has deposed that the appellant-company had issued safety induction cards for the project site of MRPL PhaseIII to all those connected with the work having the symbol of the appellant-company, i.e., CCCL, as it finds place in authorization letter, no such document has been shown to the effect that on 6.5.2012, the employees were employed by M/s.Niramathi Enterprises and on the other hand, safety induction cards go to show that the deceased employees were employed by the CCCL. P.W.5, although is found to have stated during cross-examination that they were working under M/.s.Niramathi Enterprises, given a reading to the entire deposition of said P.W.5, it appears that he has so stated on account of confusion being not able to distinguish for a moment that at the relevant time, the vehicle in which they were coming, had been provided by the M/s.Niramathi Enterprises.

¶21

In view of all the above, the Commissioner having refused to accept the case of the appellant that the death of the employees had not arisen out of and in course of their employment under the appellant, it has held that the deceased workmen were the labourers and as such workmen and have died in the accident arising out and in course of their employment under the appellant-company, i.e, CCCL. The above finding in my considered view cannot be said to be the result of perverse appreciation of evidence on record. It is not a case

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// 5 //

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that said evidence of P.W.5 has been completely sidelined and rather that has been considered with other evidence in finally recording the finding in favour of the respondent-claimants.

¶24

Coming to the answer given on issue no.3 in respect of the age and the income of the deceased workmen in selecting the appropriate factor from the schedule provided in the Act, this Court also finds no such glaring infirmity warranting any interference.

¶25

The substantial question of law is answered accordingly.

¶26

In the result, the appeals stand dismissed. The impugned judgments/awards passed by the Commissioner in all the four cases are confirmed.

¶27

The Commissioner is directed to disburse the compensation amount along with interest thereon to the claimants on proper identification.

¶28

D. Dash, J.

¶29

Basu

MD M/S.Consolidated v. Banita Naik

Case brief

What is this about?

What did the court decide?

MD M/S.Consolidated v. Banita Naik

Case brief

What is this about?

What did the court decide?

What the court decided

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