Divisional Manager, New India Assurance Co. Ltd. Vs. Sanatan Tarai and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - however, on being moved and being satisfied about any pressing need for funds, the commissioner may permit withdrawal of such sum, as would meet the requirement.a. pasayat, j.1. the only point urged in this appeal under section 30 of the workmen's compensation act, 1923 (in short, the 'act') relates to entitlement of respondents 1 to 3 (hereinafter referred to as 'claimants') to compensation.2. factual position is almost undisputed and in essence is as follows:one sanatan tarai (hereinafter referred to as 'deceased') lost his life in an automobile accident on june 5, 1993 wherein a vehicle bearing registration no. ory 715 belonging to md. sahab uddin (hereinafter referred to as 'owner') was involved. deceased at the time of accident was employed as helper and accident occurred in course of and out of his employment. the deceased was getting rs. 900/- per month as his wages and was 20 years of age. the vehicle was subject matter of insurance with the appellant new india assurance co. ltd. (hereinafter referred to as the 'insurer'). claim was lodged by the claimant in the premises that they were entitled to compensation as they depended on the deceased for their living. the commissioner for workmen's compensation-cum-asst. labour commissioner, cuttack (in short, the 'commissioner') quantified the amount of compensation at rs. 79,693/-. it is to be noted here that claimants 1 and 2 were elder brothers of the deceased, while claimant no. 3 was his minor sister. it is the appellant insurer's case that in the absence of any finding that claimants 1 to 3 were dependents on the deceased, award is vitiated in law. mr. r.n. mohanty, learned counsel for claimants on the other hand with reference to definition of 'dependent' as given in the act submitted that plea taken by insurer is absolutely untenable.3. for disposal of appeal a reference to definition of 'dependent' as appearing in section 2(1)(d) is necessary. the same reads as follows:'2. definitions (1) in this act, unless there is anything repugnant in the subject or context- xx xx xx (d) 'dependent' means any of the following relatives of a deceased workman, namely: (i) a widow, a minor legitimate son, and unmarried legitimate daughter, or a widowed mother; and (ii) if wholly dependent on the earnings of the workman at the time of his death, a sonor a daughter was has attained the age of 18 years and who is infirm; (iii) if wholly or in part dependent on the earnings of the workmen at the time of his death, - (a) widower, (b) a parent other than a widowed mother, (c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter illegitimate if married and a minor or if widowed and a minor, (d) a minor brother or an unmarried sister or a widowed sister of a minor, (e) a widowed daughter-in-law, (f) a minor child of a pre-deceased and, (g) a minor child of a pre-deceased daughter where no parent of the child is alive, or (h) a paternal grandparent if no parent of workman is alive.' 4. there is substance in the plea of the insurer that major elder brother of a workman are not encompassed by definition of 'dependent' as given in the act. however, clause (d) of sub-section (1) of section 2 of the act is crystal clear that minor brother or unmarried sister or a widowed sister comes within the umbrella of the expression 'dependent'. there being no dispute raised that claimant no. 3 manjulata tarai was a minor sister of the deceased, she for the purposes of the act is a dependent and is entitled to compensation. out of the awarded amount, a sum of rs. 60,000/- be kept in fixed deposit in her name, in any nationalised bank for a period of five years, and balance be released to her through her brother guardian kartik tarai on being identified by any of the learned counsel appearing for her before the commissioner. no withdrawal shall be permitted against the amount to be kept in fixed deposit before expiry of the stipulated period. however, on being moved and being satisfied about any pressing need for funds, the commissioner may permit withdrawal of such sum, as would meet the requirement.the appeal is allowed to the extent indicated above.