Facts of the Case:-
Bipul Gogoi was appointed as a driver of a vehicle bearing Registration No. AS- 09/2289 by the third respondent.
He reported to his duty at about 9.30 A.M. on 9.10.1996. He was since then not heard by the members of his family or by his employer.
The officer-in-charge of the Bokajan Police Station registered a case against Bipul Gogoi and a charge sheet was filed in connection with the said case before the Judicial Magistrate stating that the driver has absconded with the vehicle on 23.7.1999.
Parents of Bipul Gogoi meanwhile filed an application under the Workmen’s Compensation Act, 1923 for payment of compensation, of a sum of Rs 4,48,000 before the Commissioner of Workmen’s Compensation, Golaghat for death of their son in course of his employment.
Notices were issued to the appellant. It denied and disputed the said claim, inter alia, contending that no compensation in terms of the Workmen’s Compensation Act was payable , only on a presumption that the said Bipul Gogoi had died.
The owner of the vehicle being the third respondent, however, contended that some miscreants have taken away the vehicle with the driver which could not be searched out by the police.
The vehicle was not traced. No dead body was found. Whether the said Bipul Gogoi was dead or alive was not certain.
Bipul Gogoi was appointed as a driver of a vehicle bearing Registration No. AS- 09/2289 by the third respondent.
He reported to his duty at about 9.30 A.M. on 9.10.1996. He was since then not heard by the members of his family or by his employer.
The officer-in-charge of the Bokajan Police Station registered a case against Bipul Gogoi and a charge sheet was filed in connection with the said case before the Judicial Magistrate stating that the driver has absconded with the vehicle on 23.7.1999.
Parents of Bipul Gogoi meanwhile filed an application under the Workmen’s Compensation Act, 1923 for payment of compensation, of a sum of Rs 4,48,000 before the Commissioner of Workmen’s Compensation, Golaghat for death of their son in course of his employment.
Notices were issued to the appellant. It denied and disputed the said claim, inter alia, contending that no compensation in terms of the Workmen’s Compensation Act was payable , only on a presumption that the said Bipul Gogoi had died.
The owner of the vehicle being the third respondent, however, contended that some miscreants have taken away the vehicle with the driver which could not be searched out by the police.
The vehicle was not traced. No dead body was found. Whether the said Bipul Gogoi was dead or alive was not certain.
Decision of Commissioner:-
The driver has not been traced, since 8.10.1996 till date, i.e. for more than seven years. There fore, in view of Section 108 of the Evidence Act, it is presumed that the driver is dead. Therefore, the claimant is entitled to get compensation under the Workmen’s Compensation Act.
A sum of Rs. 2,24,000 was awarded against the employer.
Agreeived by the decision of the commissioner the appellant filed an appeal before the Hon’ble High Court and the same was dismissed.
Section 3 of Workmen’s Compensation Act, 1923 say, “If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.”
The driver has not been traced, since 8.10.1996 till date, i.e. for more than seven years. There fore, in view of Section 108 of the Evidence Act, it is presumed that the driver is dead. Therefore, the claimant is entitled to get compensation under the Workmen’s Compensation Act.
A sum of Rs. 2,24,000 was awarded against the employer.
Agreeived by the decision of the commissioner the appellant filed an appeal before the Hon’ble High Court and the same was dismissed.
Section 3 of Workmen’s Compensation Act, 1923 say, “If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.”
Section 147 of the Motor Veichles Act, 1988 provides for mandatory insurance cover by the owner of a vehicle. Provided that a policy shall not be required-
I. to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of person insured by the policy or in respect of a bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death of , or bodily injury to any such employee-
(a) engaged in driving the vehicle, or
(b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle , or
(c) if it is a goods carriage, being carried in the vehicle , or
II. to cover any contractual liability.”
I. to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of person insured by the policy or in respect of a bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 in respect of the death of , or bodily injury to any such employee-
(a) engaged in driving the vehicle, or
(b) if it is public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle , or
(c) if it is a goods carriage, being carried in the vehicle , or
II. to cover any contractual liability.”
For invoking this section it is necessary that employee must be engaged in driving the vehicle. Death or bodily injury must occur arising out of or in course of his employment.
Section 108 or 109 of Indian Evidence Act are founded on the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state, until contrary is established by evidence, either direct or circumstantial. The said provision can be invoked in a legal proceeding by the death of a person may be an issue. The Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is otherwise charged for commission of a grave offence.
The expression “accident” means an untoward mishap, which is not expected or designed.
The words ‘in the course of the employment’ means ‘in the course of the work, which the workman is employed to do and which is incidental to it’.
The words ‘arising out of employment’ are understood to mean that ‘ during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owning to the master, it is reasonable to believe that workman would not otherwise have suffered’. In other words there must be a casual relationship between the accident and the employment.
The expression “accident” means an untoward mishap, which is not expected or designed.
The words ‘in the course of the employment’ means ‘in the course of the work, which the workman is employed to do and which is incidental to it’.
The words ‘arising out of employment’ are understood to mean that ‘ during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owning to the master, it is reasonable to believe that workman would not otherwise have suffered’. In other words there must be a casual relationship between the accident and the employment.
View of the Hon’ble Supreme Court regarding the Sections 108 and 109 of the Indian Evidence Act:-
The Hon’ble Supreme Court held that the Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is charged for commission of grave offence as he in that situation may not communicate with his relations.
Furthermore in a case of his nature, it is also difficult to rely upon self-serving statements made by the claimants that they had not heard of their son for a period of seven years.
The Hon’ble Supreme Court held that the Section does not say that presumption would be applicable in all situations. It shall not apply in respect of a person who absconds from justice or evades a trial or is charged for commission of grave offence as he in that situation may not communicate with his relations.
Furthermore in a case of his nature, it is also difficult to rely upon self-serving statements made by the claimants that they had not heard of their son for a period of seven years.
Final Decision of the Hon'ble Supreme Court:-
The Hon'ble Supreme Court held that:
“The Commissioner of Workmen’s Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet that Bipul Gogoi himself had run wary with the vehicle would not be a relevant fact particularly, when cognisance had been taken by a competent court of law on the basis thereof.
Under Section 3 (1) of the Workmen’s Compensation Act, 1923 it has to be established that there was some causal connection between the death of the workman and his/her employment. If a workman dies as a natural result of a which he/she was suffering or while suffering from a particular disease he dies of that disease as result of wear and tear of the employment , not liability would be fixed upon the employer.
But if the employment is a contributory cause or has accelerated the death, or if the death was not due only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be held liable.
The rights of the parties are required to be determined as on the date of the incident. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim save and except in very exceptional cases.”
There the appellants succeeded and no compensation was awarded to the respondents , the parents of the driver.
Courtesy:- LEGAL NEWS AND VIEWS 2008
For any query:- legalpoint@aol.in
The Hon'ble Supreme Court held that:
“The Commissioner of Workmen’s Compensation or the High Court did not assign any reason as to why the fact disclosed in the charge sheet that Bipul Gogoi himself had run wary with the vehicle would not be a relevant fact particularly, when cognisance had been taken by a competent court of law on the basis thereof.
Under Section 3 (1) of the Workmen’s Compensation Act, 1923 it has to be established that there was some causal connection between the death of the workman and his/her employment. If a workman dies as a natural result of a which he/she was suffering or while suffering from a particular disease he dies of that disease as result of wear and tear of the employment , not liability would be fixed upon the employer.
But if the employment is a contributory cause or has accelerated the death, or if the death was not due only to the disease but also the disease coupled with the employment, then it can be said that the death arose out of the employment and the employer would be held liable.
The rights of the parties are required to be determined as on the date of the incident. It is, therefore, difficult to hold that a subsequent event and that too by raising a presumption in terms of Section 108 of the Evidence Act can give rise to fructification of claim save and except in very exceptional cases.”
There the appellants succeeded and no compensation was awarded to the respondents , the parents of the driver.
Courtesy:- LEGAL NEWS AND VIEWS 2008
For any query:- legalpoint@aol.in
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