1. Heard Sri S.B.L. Gour, learned counsel for the appellant-Insurance Company and Sri Rohit Nandan Pandey, learned counsel for the respondent-claimant.
2. This appeal has been filed by the Insurance Company being aggrieved of award dated 02.04.2018 passed by learned Commissioner under Workmen Compensation Act, 1923 and Assistant Labour Commissioner, U.P., Lohiyanagar, Ghaziabad on the ground that learned Tribunal has erred in awarding interest from the date, when deceased was reported to be missing rather than from the date when his civil death was declared, by the court of competent jurisdiction i.e. on 09.10.2013. It is submitted that case of the appellant is squarely covered by judgment of Supreme Court in case of Oriental Insurance Company Ltd. Vs. Sorumai Gogoi and others; 2008 (4) SCC 572. Placing reliance on paragraph-18 of the judgment passed in case of Sorumai Gogoi and others (supra), it is submitted that merely filing of the charge sheet is not sufficient and it was incumbent upon the claimants to prove that the incident took place during the course of employment and arising out of the employment.
3. Learned counsel for the appellant in view of aforesaid submission prays for modifying the date of award of interest from 2005 to 2013, when civil death was declared and also for setting aside of the award on the ground that claimants have failed to prove that said death occurred in an accident arising out of or in course of employment.
4. Sri Pandey, in his turn, supports the award and submits that Tribunal has erred in awarding interest @ 9%, whereas, statutory rate of interest is 12% as is mentioned in Section 4-A(3) of the Employees Compensation Act, 1923.
5. Accident is not defined in the Employees Compensation Act, however, taking the dictionary meaning of the accident, which is as per The Law Lexicon, 3rd Edition, 2012, reads as under:-
Accident. An undersigned, sudden or unexpected event; mishap; misfortune; disaster. (See Workmen's Compensation Act (8 of 1923), Ss. 2 and 3) "The word "accident" is derived from the Latin verb "accidere" signifying "fall upon, befall, happen, chance." In an etymological sense, anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a chance; a happening; an incident; an occurrence or event. In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning : a fortuitous circumstance, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency; fortune, mishap : some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops something happening by chance; something unforeseen, unexpected,, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or event, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence."
"A sudden event occurring without intent or volition whether through negligence, carelessness, unawareness, ignorance or a combination of causes and producing an unfortunate result; an expected happening causing loss or injury which is not due to the fault of the person [S.80 I.P.C. (45 of 1860)]; anything that happens."
"The word 'accident' generally means some unexpected event happening without design even though, there may be negligence on the part of the workmen. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed. Bai Shakri v. New Manekchowk Mills Co. Ltd., AIR 1961 Guj 34, 35".
6. Thus, it is apparent from the definition of accident that it is some unexpected event happening without design, thus in the present case, it was incumbent upon the Insurance Company to have brought on record that vehicle was unauthorizedly taken away by the driver-cleaner without permission and sanction of the owner of the vehicle to bring their case within the parameters of Sorumai Gogoi and others (supra), but there is no such evidence on record.
7. In case of Sorumai Gogoi and others (supra), a specific fact has been noted by the Hon'ble Supreme Court that deceased Bipul Gogoi had run away with the vehicle and had not been heard for a period of seven years, particularly, when he was declared a proclaimed offender by a Court of law.
8. Under such facts and circumstances, the Supreme Court observed that when provisions of Section 108 of the Evidence Act were invoked by the criminal court for dropping the criminal case presuming Bipul Gogoi to be dead, the said provisions could not have been invoked for the purpose of grant of compensation under the 1923 Act without any other evidence having been brought on record.
9. In the present case, facts are different. It is an admitted fact that deceased had taken truck under authorisation of the owner to Rishikesh along with cleaner. Truck was neither apprehended nor recovered. Even the goods which were loaded in the truck were not recovered. No antecedents of driver and Cleaner could be ascertained. Therefore, a case for declaration of their civil death was filed. It is not disputed that the truck was taken by an authorized employee under authority of the owner of the goods. Therefore, there is no material on record to show any breach of trust as is the fact in case of Sorumai Gogoi and others (supra).
10. In view of such facts, judgment of Sorumai Gogoi and others (supra) is clearly distinguishable on facts and is not applicable to the facts of present case, therefore, appeal fails. However, before parting with the appeal this court will be failing in its duty, if it fails to upgrade the rate of interest to 12% from 9% as is statutorily prescribed under the provisions of Section 4-A(3) of the Employees Compensation Act, 1923. Thus, it is directed that with a view to do justice between the parties, appellants will not only pay the compensation assessed by the learned Tribunal but shall also pay interest @ 12% from the date of the accident till the actual date of payment of compensation.
11. In above terms, appeal is disposed off.
Order Date :- 20.1.2021 Ashutosh