IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.307 of 2000
United India Insurance Company Ltd. through its Divisional Manager,
A.N. Road Divisional Office, Gaya.
....... (Defendant No.1) Appellant.
Versus
1. Mukesh Kumar, Son of Late Jatan Singh, Village - Baikunthpur,
Police Station - Khusrupur, District - Patna.
...... (Plaintiff) Respondent Ist Set.
2. Awinash Kumar, Son of Sri Ram Asish Singh, Village - Chainpur,
Police Station - Belaganj, District - Gaya.
Owner of Vehicle No. BR-25/4511.
.... (Defendant No. 2) Respondent 2nd Set
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14/ 06.08.2010 Heard learned counsel for both the parties.
This miscellaneous appeal is directed against the
order dated 16.02.2000 passed by the Deputy Labour
Commissioner – Cum – Workmen Compensation
Commissioner, Magadh Division, Gaya by which he has
granted compensation of Rs.2,24,000/- to the respondents
who is the heir of the deceased Ramesh Kumar claims to be
the driver on the bus bearing no. BR 25/8599. The accident
alleged to be taken place on 29.10.1998. However, the claim
petition has been filed on 1999 with a petition for condoning
the delay claiming that the claimant is the brother of the
deceased who was minor on the date of occurrence
dependent on the deceased as the father and mother of the
deceased has already expired and even a petition for
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condoning the delay filed along with the petition.
Learned counsel for the appellant, however,
contended that the Deputy Labour Commissioner-cum-
Workmen Compensation Commissioner, Magadh Division,
Gaya has no jurisdiction as Gaya, Jehanabad, Aurangabad,
Bhabhua and Ramgardh come under the jurisdiction of
Presiding Officer, Labour Court, Dalmiannagar.
Learned counsel for the appellant, further
contended that the limitation petition was not allowed. The
claimant has not established the age of the deceased victim
or he was a workman died during the service and hence the
entire evidence about the claim is vague and has not
discharged the onus to prove the case by cogent and reliable
evidence and even on preponderance of probability as
witnesses are untrustworthy and brother of deceased has not
been examined. Further the Evidence Act or burden of proof
on the preponderance of probability has not been established
as no document has been provided for the victim being of
the age 20 years or that he was employed as workman and
the brothers have not been examined and hence the
witnesses are untrustworthy.
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Learned counsel for the opposite party, however,
contended that it was not within the competence of the
appellant to produce the document. However, there is no
challenge either by the owner or by the Insurance Company
during the proceeding before the labour court and nothing
has been brought in the notice either in the impugned order
or in the grounds of appeal that there was any contest raised
by the insurance company or the worker that the deceased
was not a workman or the Tribunal had no territorial
jurisdiction and others and further the claimant had filed a
petition for limitation in the lower court and the court has
taken note of that the Workmen Compensation Act is a
beneficial legislation and hence there must have been a
liberal construction in favour of the claimant and if the
objection has not been raised by the appellant, the claim of
the claimant was allowed.
However, from perusal of the orders it is the
Deputy Labour Commissioner, Workmen Compensation
Act, Magadh Division, Gaya has passed the order on
16.02.2002. The notification suggest that all the Presiding
Officer of the Labour Courts – cum – Workmen
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Compensation Commissioner can dispose of the claims if
not contested and in the notification itself in Item No. 22
mentions the Deputy Labour Commissioner, Magadh
Division, Gaya has jurisdiction over the entire Magadh
Division in the same notification which has been relied
upon, a faded copy has been filed notification dated
06.12.1995. Moreover in the grounds of appeal by the
appellant there is no mention of any ground taken as such
that the Deputy Labour Commissioner – cum – Workmen
Compensation Commissioner, Magadh Division, Gaya has
no jurisdiction to dispose of the claim under Workmen
Compensation Act for the territorial jurisdiction of Gaya
specifically. However, general grounds have been taken that
the order is illegal without jurisdiction but it has not been
specifically mentioned how it is without jurisdiction.
Learned counsel for the appellant, however,
contended that the claim is barred by limitation. However,
in the grounds of appeal there is no ground for limitation
has been taken nor there is any mention about the basic facts
for the limitation and the court has taken into consideration
the fact that the claimant was 17 years at the time of the
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death of the deceased and was dependent on income of
deceased and when the claimant got adult then has filed the
case and even filed a separate petition for condoning the
delay and after duly scrutinizing the claim petition the claim
petition was registered and notices issued to the opposite
party to deposit the claim or give a written statement and the
copy of the same was also given to the appellant and the
claim petition was heard on various dates and even the
written statement filed by the Insurance Company and the
certificate of the age and even the statement of witness
Krishna Kumar and Bharat Prasad were recorded. The
Tribunal on perusal of the First Information Report, post
mortem, insurance policy and the statement of the witnesses
held that the deceased was a driver at the time of the death
and the claimant is the younger brother dependent on the
income of the deceased and since the deceased was
unmarried whose parents had died and under Section 2(D)
of the Workmen Compensation Act the younger brother is a
dependent and hence is liable to that compensation.
Learned counsel for the Insurance Company,
however, contends that the claimant has not produced any
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document either to show that the deceased was a workman
as he has not produced any paper. However, it is difficult for
the claimant to procure any document from a private bus
owner but neither the owner nor the insurance company has
come forward to contest and dispute that the deceased was
not a workman nor there is any contest or challenge that the
deceased was not a brother of the driver and when these
matter has not been disputed then disbelieving the evidence
of the witnesses or disclaiming the claim of the claimant
does not appear to be proper as Workmen Compensation
Act is a beneficial legislation and the law is to be interpreted
in liberal construction. The insurance company and the
owner have been given the option to dispute and challenge
the facts. However, there is nothing on record to suggest
either in the grounds of appeal or by any document even by
the written statement that they challenged that the deceased
was not the workman or the claimant is not the brother.
Since there was no challenge the Labour Commissioner has
jurisdiction to decide. From the entire impugned order there
is nothing to show that there was any contest.
Learned counsel for the appellant, however,
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contested that the Deputy Labour Commissioner, Magadh
Division, Gaya has no jurisdiction because when there is a
contest it is a Labour Court who has got jurisdiction.
However, there is nothing on record to suggest that there
was any contest or dispute raised that the deceased was not a
workman or the claimant was not the heir or brother
dependent on the deceased and hence since there is no
dispute raised the Insurance Company cannot challenge
even in the grounds of appeal no grounds has been taken
that they have challenged these facts. However, the only
points raised that the appellant has not produced any
document regarding the facts that the deceased was the
workman of the vehicle owned by the owner or the claimant
has not proved by a document that he was dependent on his
bother or about his age. However, the impugned order itself
mentions that the deceased produced the school leaving
certificate and adduce evidence the evidence of the witness
to hold that the deceased was a workman and the claimant
was the owner and it was incumbent on the insurance
company to challenge the facts or to dispute the claim.
However, it has been contended that the fact has not been
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proved well within Section 101 and 102 of the Evidence
Act. However, the Evidence Act is not strictly applied in
such proceedings like the Motor Vehicles Act and the
Workmen Compensation Act and it is incumbent on the
Insurance Company or the worker to contest or dispute but
the insurance company could not show that labour disputed
or challenged the claim of the claimant and hence I do not
find any merit in this appeal, hence, the appeal is dismissed.
Kundan (Gopal Prasad, J.)