| SooperKanoon Citation | sooperkanoon.com/532381 |
| Subject | Labour and Industrial |
| Court | Orissa High Court |
| Decided On | Jul-23-1999 |
| Case Number | Miscellaneous Appeal No. 318 of 1994 |
| Judge | P.K. Misra, J. |
| Reported in | II(1999)ACC682; 2001ACJ1320; 1999(II)OLR375 |
| Acts | Workmen's Compensation Act, 1923; Motor Vehicles Act - Sections 147 |
| Appellant | Akuli Charan Das and Anr. |
| Respondent | Commissioner for Workmen's Compensation and Deputy Labour Commissioner and Ors. |
| Appellant Advocate | Biswa Mohan Pattnaik,
R.N. Misra and Sayed H. Ali |
| Respondent Advocate | Addl. Standing Counsel (R-2), S.D. Das, A.K. Choudhury, B.N. Udgata, A.K. Nayak, L. Samantray (R-3), B.P. Ray, S. Pujari, P.C. Rout and P.K. Patnaik (R-4) |
Excerpt:
- labour & services
pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules.
- thus, he filed the claim application against appellants 1 and 2 as well as the present respondent no. 7,320/-.4. the appeal has been filed by the contractor as well as his sub- contractor.p.k. misra, j.1. appellant no. 1, a special class contractor, had taken work under respondent no. 2. appellant no. 2, the power of attorney holder, was executing the work on behalf of appellant no. 1. respondent no. 4 was engaged as a labourer. he filed a claim application before the commissioner for workmen's compensation (hereinafter referred to as the 'commissioner'), jeypore, on the allegation that while he was breaking stones under appellant no. 2 who was a sub-contractor of appellant no. 1, he sustained injury on the left eye which was damaged. thus, he filed the claim application against appellants 1 and 2 as well as the present respondent no. 2 who had engaged the appellant no. 1.2. the appellant no. 1 in his written statement stated that the injured was a labourer in the tipper belonging to him and had been engaged for the purpose of loading and unloading the boulders in the tipper and he sustained injury while he was breaking the boulders for the purpose of loading in the tipper. it was further claimed by him that the tipper in question had been insured with the insurance company and the compensation. if any, should be paid by the insurance company. the insurance company which was impleaded subsequently filed written statement denying its liability.3. the commissioner found that the workman had sustained the injury in an accident arising out of and in course of his employment under appellant no. 1 and directed for payment of compensation of rs. 24,402/- along with interest at the rate of 6% from the date of accident. the commissioner also directed that appellant no. 1 was liable to pay penalty of rs. 7,320/-.4. the appeal has been filed by the contractor as well as his sub- contractor. in this appeal it is contended that the workman had been engaged for the purpose of loading and unloading of the tipper and to facilitate such loading, the work of breaking boulders which was incidental to the work of loading and unloading had to be undertaken. it is, therefore. submitted that the compensation amount should be paid by the insurance company as the tipper had been validly insured. it is further submitted that there is no justification for imposition of penalty .5. dealing with the last question first, it appears that there was no justification for the commissioner to impose penalty of 30% at that stage. having regard to the facts and circumstances of the case, the direction regarding imposition of penalty of rs. 7,320/- is set aside.6. the next question is as to whether the insurance company is liable to pay the compensation. in this connection, it is to be pointed out that the claimant in his application had stated that he had been engaged in the work of breaking boulders. it is of course true that he has stated in his cross-examination that he was engaged in loading and unloading of the tipper. liven assuming that the workman had been engaged for the purpose of loading and unloading of tipper, and the act of breaking the boulders was for the purpose of loading and unloading of chips on to the tipper, it cannot be said that there was an accident involving the tipper itself. section 147 of the motor vehicles act contemplates that the insurance company may be liable to cover the liability of the owner on account of death or bodily injury caused by or arising out of use of the vehicle in a public place. though the act of breaking boulders to chips may be incidental for the purpose of carrying chips in the tipper, yet it cannot be said that the accident was relatable to the use of the tipper. therefore, i am unable to accept the contention of the appellants regarding the liability of the insurance company.7. it appears that the appellants at' the time of filing appeal had furnished a bank guarantee. it is not known as to whether the bank guarantee is still valid. if the bank guarantee is still operative, a sum of rs. 26,354/- shall be paid out of it to the claimant-respondent no. 4. it is made clear that the direction regarding payment of penalty of rs. 7,320/- is waived. if the bank guarantee is still not operative, the appellant no. 1 is directed to pay the amount by end of 31st august, 1999, failing which he will be liable to pay the amount with interest at the rate of 12% thereafter.8. subject to the aforesaid directions, the appeal is allowed in part. no cost.
Judgment:P.K. Misra, J.
1. Appellant No. 1, a Special Class Contractor, had taken work under respondent No. 2. Appellant No. 2, the power of attorney holder, was executing the work on behalf of appellant No. 1. Respondent No. 4 was engaged as a labourer. He filed a claim application before the Commissioner for Workmen's Compensation (hereinafter referred to as the 'Commissioner'), Jeypore, on the allegation that while he was breaking stones under appellant No. 2 who was a Sub-Contractor of appellant No. 1, he sustained injury on the left eye which was damaged. Thus, he filed the claim application against appellants 1 and 2 as well as the present respondent No. 2 who had engaged the appellant No. 1.
2. The appellant No. 1 in his written statement stated that the injured was a labourer in the Tipper belonging to him and had been engaged for the purpose of loading and unloading the boulders in the Tipper and he sustained injury while he was breaking the boulders for the purpose of loading in the Tipper. It was further claimed by him that the Tipper in question had been insured with the Insurance Company and the compensation. if any, should be paid by the Insurance Company. The Insurance Company which was impleaded subsequently filed written statement denying its liability.
3. The Commissioner found that the workman had sustained the injury in an accident arising out of and in course of his employment under appellant No. 1 and directed for payment of compensation of Rs. 24,402/- along with interest at the rate of 6% from the date of accident. The Commissioner also directed that appellant No. 1 was liable to pay penalty of Rs. 7,320/-.
4. The appeal has been filed by the Contractor as well as his Sub- Contractor. In this appeal it is contended that the workman had been engaged for the purpose of loading and unloading of the Tipper and to facilitate such loading, the work of breaking boulders which was incidental to the work of loading and unloading had to be undertaken. It is, therefore. submitted that the compensation amount should be paid by the Insurance Company as the Tipper had been validly insured. It is further submitted that there is no justification for imposition of penalty .
5. Dealing with the last question first, it appears that there was no justification for the Commissioner to impose penalty of 30% at that stage. Having regard to the facts and circumstances of the case, the direction regarding imposition of penalty of Rs. 7,320/- is set aside.
6. The next question is as to whether the Insurance Company is liable to pay the compensation. In this connection, it is to be pointed out that the claimant in his application had stated that he had been engaged in the work of breaking boulders. It is of course true that he has stated in his cross-examination that he was engaged in loading and unloading of the Tipper. liven assuming that the workman had been engaged for the purpose of loading and unloading of Tipper, and the act of breaking the boulders was for the purpose of loading and unloading of chips on to the Tipper, it cannot be said that there was an accident involving the Tipper itself. Section 147 of the Motor Vehicles Act contemplates that the Insurance Company may be liable to cover the liability of the owner on account of death or bodily injury caused by or arising out of use of the vehicle in a public place. Though the act of breaking boulders to chips may be incidental for the purpose of carrying chips in the Tipper, yet it cannot be said that the accident was relatable to the use of the Tipper. Therefore, I am unable to accept the contention of the appellants regarding the liability of the Insurance Company.
7. It appears that the appellants at' the time of filing appeal had furnished a bank guarantee. It is not known as to whether the bank guarantee is still valid. If the bank guarantee is still operative, a sum of Rs. 26,354/- shall be paid out of it to the claimant-respondent No. 4. It is made clear that the direction regarding payment of penalty of Rs. 7,320/- is waived. If the bank guarantee is still not operative, the appellant No. 1 is directed to pay the amount by end of 31st August, 1999, failing which he will be liable to pay the amount with interest at the rate of 12% thereafter.
8. Subject to the aforesaid directions, the appeal is allowed in part. No cost.