JUDGMENT
S.C. Mohapatra, J.
1. Insurer is the appellant in this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (in short ‘the Act’).
2. Deceased was employed as driver of
a dumper which was insured with the appellant. There is no dispute in this appeal that the deceased was a workman and would be entitled to compensation under the Act. Mr. S.S. Basu, the learned counsel for the appellant, assailed the order of the Com-
missioner on the ground that the deceased though sustained fatal injuries in course of employment there is no finding that the fatal injuries arose out of such employment. Mr. Basu also challenged the age and monthly wages of the deceased. Mr. S.K. Dey, the learned counsel for the defendant-respondent No. 1, submitted that the age and wages are questions of fact which ought not to be gone into in this appeal in view of the proviso which confines an appeal to substantial questions of law. As regards the fatal injuries arising out of employment, Mr. Dey submitted that on the facts there can be no doubt that the fatal injuries arose out of employment.
3. On 16.4.1986 at about 4.30 p.m. after the dumper was loaded, the deceased as the driver of the vehicle went to make entry in the trip note book with the officer near at hand. At that time another dumper caused the fatal accident. On account of the death, his father (respondent No. 1) filed the claim application before the Commissioner alleging that the deceased was aged 27 years and his monthly salary was Rs. 1,400/-. In the written statement filed by the employer the occurrence and the employment of the deceased was admitted. It was stated that the monthly wages of the deceased was Rs. 580/- and he was receiving house rent of Rs. 40/- per month. Admitting his liability, the employer stated that the insurer of the vehicle is to pay the compensation. On receipt of the objection, notice was issued to the insurer on 24.7.1986. The insurer appeared on 6.12.1986 and prayed for a month’s time to file written statement which was filed on 30.12.1986 where the liability of the insurer was denied. The monthly wages received by the deceased was also denied. It was stated in paragraph 7 as follows:
“That this opposite party reasonably believes that the opp. Party No. 1 (owner of the vehicle) colludes with the petitioner in order to obtain an unfair advantage out of the alleged accident.”
Objection to such assertions were raised
on behalf of the applicant.
4. There is no other oral evidence excepting that of the applicant, who stated in cross-examination that the deceased was paying Rs. 1,000/- in between 1st and 5th of each month to his mother in his presence. Although he stated that he has no knowledge of the date of birth, he stated that he was filing the transfer certificate from the school regarding his date of birth. The transfer certificate indicates the date of birth to be 7.4.1959. With this evidence, the Commissioner found that the deceased was aged 27 at the time of accident and he died in course of employment. Discussing about the monthly wages, the commissioner took into consideration the rival contentions of the employer and the applicant and found the monthly wages to be about Rs. 1,000/-. Accordingly, the compensation of Rs. 83,428/-was awarded directing the insurer to indemnify the same. The ordering portion is quoted below:
“In view of my aforesaid findings the award is passed against the O.P. No. 1 and II which is to be indemnified by the O.P. No. III i.e. Insurance Company.
5. After the award was passed, the insurer deposited the amount with a letter expressing the intention to file appeal. In the said letter it was claimed by the insurer that the transfer certificate on the basis of which the age has been determined is not correct. A certificate purported to have been granted by the Headmaster of the school was enclosed. This certificate has been prayed by the appellant to be accepted as additional evidence.
6. Neither the opposite Party No. 1, the employer nor the opposite Party No. 3 whose vehicle caused the accident preferred any appeal. The insurer has preferred this appeal and has also filed the receipt showing deposit of the amount of compensation awarded.
7. Appeal is provided under Section 30 of the Act. Under the first proviso of Sub-section (1) no such appeal shall lie against any order unless a substantial question of
law is involved. At the time of admission of the appeal, no such substantial question of law nas been indicated. In this background, when the matter relating to contempt was heard by me, I directed to hear the appeal itself and the matter was finally heard today.
8. Under the scheme of the Act, the employer is made liable for the compensation under Section 3. Where the workman is employed under a contractor under Section 12 of the Act, the party on whose behalf the employer-contractor was working is made liable as the principal employer. Under Section 14 of the Act to a limited extent an insurer is made liable. In Bibhuti Bhusan Mukherjee v. Srimati Dinamoni Dei and Ors. 52(1981) CLT. 235 and in The Oriental Fire and General insurance Co. Ltd. v. Matias Burla and Anr. (1985)60 CLT. 257, it has been held that the insurer can be directed to pay the compensation under the Act. This is in view of the mandatory provision under Section 98(1) of the Motor Vehicles Act, 1939, where the accident is by a motor vehicle. Once the insurer is made liable under the Act and the language of Section 30 of the Act does not provide as to who would file the appeal, a reasonable construction would be that any person aggrieved by the order can prefer an appeal. The insurer has been aggrieved by the order of Commissioner in this case fixing the liability on it and accordingly, the appeal by the insurer is maintainable.
9. At this stage it is worth mentioning that the third proviso under Section 30(1) requires the employer to deposit the amount. It does not require the insurer to deposit any amount. However, further discussion becomes academic in this case since the insurer has deposited the amount.
10. In spite of my finding that the appeal by the insurer is maintainable even without deposit of the amount the first proviso to Section 30(1) of the Act would also be attracted to this case. In other words, the insurer must satisfy the appellate Court that there is a substantial question of law involved in the appeal.
11. Appellant has filed an application for admitting the certificate purported to have been issued to the insurer as additional evidence in this case. No doubt such document was produced before the Commissioner after the disposal of the claim proceeding. The nature of the additional evidence is the transfer certificate purported to have been given by the Headmaster of the school in proof of the date of birth to the effect that no such person in the name of the deceased was ever reading in the school. If there would have been an application for adjournment of the proceeding by the insurer to get evidence relating to the date of birth before the Commissioner and he would have refused the same, a substantial question of law would have arisen in this case for consideration whether the refusal was in violation of the principles of natural justice and whether adequate opportunity was available to the insurer to prove the case. On a finding that such opportunity was not available the additional evidence could have been taken into consideration, and in case the additional evidence would have been accepted by me I would have been entitled to weigh the evidence afresh. However, on perusal of the record before the Commissioner, I am not able to find any such prayer by the insurer. Accordingly, it is, not possible to admit the additional evidence in this appeal.
12. As regards the age of the deceased employee, Mr. Basu, submitted that post mortem report (Ext.C.) which is on record indicates the opinion of the doctor that the deceased was aged about 35 years at the time of death. The transfer certificate indicates that the employee was about 27 years at the time of death. Once the transfer certificate is accepted and it is relied upon by the applicant, it is open to a Court of fact to assess both the documents and determine the age. Thus, there being two pieces of materials on record and the Commissioner being the fact finding authority having come to the conclusion that the age of the deceased was 27 years at the time of accident, in
this appeal I cannot interfere with the same since it does not involve substantial question of law.
13. There is no dispute that the age if taken to be 27 and the monthly wages is taken to be Rs. 1,000/- the calculation of the compensation is correct. Mr. Basu, however, submitted in all fairness that the age should have been taken to be 35 years keeping in mind that the age reflected in the school register at times found to be wrong. A medical expert while determining the age finds various aspects of the growth of the bone and number of teeth etc. Such determination should have been discarded. If the insurer would have called the expert in this case and examined him to prove the age, possibly there would have been some force in the contention of Mr. Basu. Unfortunately, the medical officer has not been examined in the present case. Accordingly, I am not inclined to interfere with such a finding.
14. Mr. Basu, the learned counsel for the appellant, submitted that the finding that the deceased was employed on a monthly wage of Rs. 1,000/- is arbitrary and irrational without any basis. In the written statement itself the insurer had taken the plea that the employer colluded with the applicant and the employer should prove from the documents about the wages of the deceased. The insurer could have examined the employer and could have examined similar drivers to prove the actual wages. No steps have been taken in that regard. In fact, the insurer has been permitted by the Commissioner to cross-examine the applicant possibly because of the allegation of collusion. In such circumstances, where there is a dispute as to what is the monthly wages, the Commissioner on the materials available can draw an inference from the materials proved as to the real wages of the deceased. When the father said that every month between 1st and 5th the deceased was paying Rs. 1,000/- to his mother in his presence and there is no evidence that the deceased had any other source of income, the fact finding authority can legitimately come to the conclusion that the same is the monthly wages of the employee. In such circumstances, the determination of monthly wages of Rs. 1,000/- per month is a question of fact and no substantial question of law is involved in this case.
15. Mr. S.K. Dey, the learned counsel for the claimant, submitted that the insurer should not be permitted to challenge the facts relating to age and compensation specially when the employer has filed his written statement and contested the claim, in view of the limited scope of objection of the insurer under Section 96(3) of the Motor Vehicles Act. In this case records disclose that the employer had filed his objection in Form 2 long before the insurer filed his objection. The employer had practically admitted the deceased to be his employee and the death had arisen out of and in course of employment. Liability was also admitted by him. In this background, in the objection itself when the insurer has taken a stand that the employer has colluded with the applicant, I am satisfied that the Commissioner was justified in permitting the insurer to cross-examine the witnesses on merits also, since even in a proceeding under the Motor Vehicles Act, Section 110-C(2-A) thereof clearly provides that in case of collusion between the owner of a vehicle and the claimant the insurer can challenge the claim on merits. Mr. S.K. Dey submitted that Section 110-C(2-A) is applicable to matters pending before the Tribunal under the Motor Vehicles Act and not before the Commissioner for the Workmen’s Compensation. Though Mr. Dey is correct that the provision is not directly applicable, the principle would be applicable to such a case.
16. Mr. Basu submitted lastly which is a substantial question of law in the present case. He submitted that in order to get the compensation under the Act the death is to arise out of and in course of an employment. The Commissioner having found the accident in course of employment only and nowhere it having been stated that the accident arose out of employment, the order is liable to be set aside. Academically Mr. Basu is correct. In that respect I went into
the matter. It is not disputed that after the dumper was loaded, the deceased went to report to the nearest officer about the trip when he met with the accident. It is in the same premises. Accordingly, the events are so intrinsically connected that one cannot be separated from the other. It can safely
be concluded that the accident was caused out of the employment.
17. All the submissions of Mr. Basu having failed, this appeal is dismissed. There shall, however, be no order as to costs.