NEW INDIA ASSURANCE CO LTD Vs. SANKAR BEHERA

JUDGEMENT

(1.) INSURER is the appellant in this appeal under Section 30 of the Workmen's Compensation Act, 1923 (in short 'the Act' ).

(2.) DECEASED was employed as driver of a dumper which was insured with the appellant. There is no dispute in this appeal that the deceased was a workman and would be entitled to compensation under the Act. Mr. S. S. Basu, the learned counsel for the appellant, assailed the order of the Com- missioner on the ground that the deceased though sustained fatal injuries in course of employment there is no finding that the fatal injuries arose out of such employment. Mr. Basu also challenged the age and monthly wages of the deceased. Mr. S. K. Dey, the learned counsel for the defendant-respondent No. 1, submitted that the age and wages are questions of fact which ought not to be gone into in this appeal in view of the proviso which confines an appeal to substantial questions of law. As regards the fatal injuries arising out of employment, Mr. Dey submitted that on the facts there can be no doubt that the fatal injuries arose out of employment.

(3.) ON 16. 4. 1986 at about 4. 30 p. m. after the dumper was loaded, the deceased as the driver of the vehicle went to make entry in the trip note book with the officer near at hand. At that time another dumper caused the fatal accident. On account of the death, his father (respondent No. 1) filed the claim application before the Commissioner alleging that the deceased was aged 27 years and his monthly salary was Rs. 1,400/ -. In the written statement filed by the employer the occurrence and the employment of the deceased was admitted. It was stated that the monthly wages of the deceased was Rs. 580/- and he was receiving house rent of Rs. 40/- per month. Admitting his liability, the employer stated that the insurer of the vehicle is to pay the compensation. On receipt of the objection, notice was issued to the insurer on 24. 7. 1986. The insurer appeared on 6. 12. 1986 and prayed for a month's time to file written statement which was filed on 30. 12. 1986 where the liability of the insurer was denied. The monthly wages received by the deceased was also denied. It was stated in paragraph 7 as follows: