Decided on August 09,2018

Oreintal Insurance Co Ltd Appellant
Md Habibur Rahman Respondents


Kalyan Rai Surana, J. - (1.) Heard Mr. S.K. Goswami, the learned counsel for the appellant. None appears on call for the respondents No. 1 and 2, who are the injured and the owner of the offending vehicle.
(2.) By order dated 28.07.2010, this appeal under Section 30 of the Workmen's Compensation Act, 1923, preferred against the judgment and order dated 17.07.2018 passed by the learned Commissioner, Workmen's Compensation, Kamrup (M), Guwahati in W.C. Case No. 130/2003 was admitted on the following substantial question of law: (i) Whether the learned Commissioner can decide a claim petition without framing the issue relating to the status of the employment of the claimant in view of the Rule 28 of the Workmen's Compensation Rule, 1924 when there is specific denial by the employer regarding the status of the claimant as an employee? (ii) Whether the daily allowance of the claimant can be included with his monthly wage by the learned Commissioner while calculating the compensation?
(3.) In the claim petition, it is projected that the respondent No. 1 was working as a labour in truck bearing registration No. AS-14-7140 owned by the respondent No. 2 and that on 25.12.2002, the said vehicle met with an accident on Mugdi Bridge under Mukalmuah P.S. in the district of Barpeta, Assam. It was claimed that the respondent No. 1 was 20 years old at the time of the accident and was receiving monthly wages of Rs.4,000/- per month and that he had sustained grievous injury in the accident, leading to permanent total disablement. The appellant had contested the case by filing written statement. In support of the claim, the respondent No. 1 examined himself as PW-1 and exhibited the following documents, viz., Doctor's Prescriptions (Ext.1 to 3), X-Ray Report (Ext.4), Medical Certificate (Ext.5), X-Ray Plates (Ext.6) and Police Report (Ext.7). In defence, the husband as well as constituted attorney of the respondent No. 2 examined himself as DW-2. The appellant examined their Branch Manager as DW-1 and had exhibited the Police Report (Ext.A) and the Insurance Claim Form submitted by the owner (Ext.B).;

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