Divisional Manager, New India Assurance Co. Ltd. Vs. Jasoda Singh Bhadoria 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]. - it is also pleaded that the documents filed clearly go to show the competency of the deceased to drive the vehicle. however, the commissioner on being moved and being satisfied about pressing need for withdrawal may permit such amount to be withdrawn, as would be considered by him to be adequate.a. pasayat, j.1. new india assurance company limited (hereinafter referred to as the 'insurer') challenges in this appeal under section 30 of the workmen's compensation act, 1923 (in short, the 'act') the award made by the assistant labour commissioner-cum-commissioner for workmen's compensation, cuttack (hereinafter referred to as the 'commissioner') adjudicating a claim made by respondents 1 to 3 (hereinafter referred to as the 'claimants'). the claim was made before the commissioner on the ground that madan singh bhadoria (hereinafter referred to as the 'deceased') was driver of the truck bearing registration no. orr 1764 belonging to mahabir prasad agarwalla (hereinafter referred to as the 'owner'). due to an accident on june 6, 1990 where the said vehicle was involved deceased lost his life while discharging his duties as a driver and the accident occurred in course of his employment. age of the deceased was stated to be 28 years and the monthly wages to be rs. 1000/-. the owner appeared and filed written statement accepting employment of the deceased, wages claimed and the accident. his stand was that the vehicle involved in accident was the subject-matter of insurance with the insurer, and the award, if any, was to be indemnified by it. the insurer filed written statement disputing theage, and generally denying its liability since the owner has to prove the factum of accident, existence of policy to cover the vehicle, the wages and such other relevant aspects. on appreciation of evidence led before him the commissioner came to conclude that the accident took place during the course of employment of the deceased and taking his age to be 28 years and income at rs. 1,000/- he quantified the entitlement of the claimant at rs. 84,716/-2. in the present appeal it is stated that the employment of the deceased as claimed is not acceptable as the owner-respondent no. 4 has not produced any document before the commissioner in that regard. further materials on record do not establish that deceased has a valid driving licence. the age of the deceased having been found to be 35 years in the post-mortem report and the inquest report, finding the age at 28 years as done by the commissioner is also assailed. it is further stated that in view of clear stipulation in the policy, penalty and interests are not to be indemnified by the insurer if levied by the commissioner, the observations by the commissioner in that regard are not sustainable.3. mr. b. pujari, learned counsel for claimants, submitted that the commissioner has given cogent reasons for fixing the age at 28 years. according to him, observation of the commissioner that the age indicated in the post-mortem report is outcome of guess work is correct. it is also pleaded that the documents filed clearly go to show the competency of the deceased to drive the vehicle.4. so far as the driving licence aspect is concerned, i find that the copy of driving licence was marked as an exhibit on admission. while exercising appellate jurisdiction under section 30 of the act which restricts consideration to substantial question of law, i decline to accept the factual dispute relating to validity of the driving licence without any definite materials to affect its authenticity.so far as the age of deceased is concerned, the commissioner took the age to be 28 years with the conclusion that the age indicated in the post-mortem report is merely a guess work. to say the least, the conclusion is presumptuous and without any basis. sanctity is to be attached to the age indicated by the experienced and qualified doctor, who issued the post-mortem report. unless materials are brought on record to show that the indication of age in the post mortem report is erroneous, the age indicated in the post mortem report is to prevail. in terms of section 294 of the code of criminal procedure, 1973 (in short, the 'code') a post-mortem report can be read as substantive evidence in a criminal trial (under sub-section (3)) if its genuiness is not disputed. post mortem report is essentially a report by an expert. in the case at hand, no material whatsoever was brought on record to justify departure from the conclusion regarding age of the deceased as indicated in the post mortem report, i, therefore, take the age of the deceased to be 35 years at the time of accident.5. so far as wages earned by the deceased prior to the death is concerned, there was practically no material brought on record by the appellant to rebut the specific materials placed by claimants, as reiterated by the owner, that the wages earned was more than rs. 1,000/-per month. the act prescribes the maximum which can be taken for the purpose of quantification, and in case of death 40% of the wages is to be applied. taking into consideration the age factor, the entitlement of the claimants comes to rs. 77,865/- (400 x 194.64). out of the said amount, a sum of rs. 60,000/- shall be kept in a fixed deposit in a nationalised bank for a period of five years. thefixed deposits shall be rs. 25,000/- each in case of jasoda singh bhadoria and khushoo singh bhadoria claimant nos. 1 and 2 respectively. the deposit of minor claimant no. 2 khushoo singh bhadoria shall be through her mother guardian jasoda singh bhadoria. in respect of smt. jayanti singh bhadoria, mother of the deceased, the amount of fixed deposit shall be rs. 10,000/- no withdrawal shall be permitted against the fixed deposits. however, the commissioner on being moved and being satisfied about pressing need for withdrawal may permit such amount to be withdrawn, as would be considered by him to be adequate. so far as the balance amount is concerned, rs. 14,000/- shall be paid to jasoda singh bhadoria (claimant no. 1) and rs. 3,856/- shall be paidto smt. jayanti singh bhadoria (claimant no. 3), on being identified by any of the learned counsel appearing for them in this court.6. it is stated that a sum of rs. 34,716/-has been deposited pursuant to direction given. the difference of the amount in deposit and the amount to be paid pursuant to the direction given in this appeal shall be released to the appellant-insurance company.there is no question of any penalty or interest as imposed by the commissioner on the appellant in view of clear stipulation to the policy that the insurer shall not be liable for any interest or penalty imposable in respect of the amount to be identified by it.the appeal is allowed to the extent indicated above.