S) '/' IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A^oT^-^ /2007 MISC. APPEAL UNDER SECTION 30 OF WORKMEN COMPENSATIONACT, 1923 APPEAL VALUE AT RS. 4.S6.940/- APPELLANT/ APPLICANT ,..<-"^^ \^' .^s;'\^^" ^^:..-11 ^:...--- RESPONDENT/ NON-APPLICANT )? Badaka Dai W/o Late Shri Ghasidas Bairagi, aged about 65 years, Occupation- Nothing, R/o Bhola Gali, Indira Nagar, Raigarh, Tahsil and District Raigarh [C.G.] VERSUS ^Kshok Kumar Agrawal S/o Govindram Agrawal, aged about 36 years, Occupation Vehicle owner, caste- Agrawal, R/o In opposite of K.G. Hospital, Raigarh, Tahsil and District - Raigarh [C.G.] r r^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.IVI.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Applicant Resoondent Non-apDlicant M.A. (Ci No.95/2007 Badaka Dai Vs Ashok Kumar Agrawal Present: Mr. SKTiwari, counsel for the appellant. None for the respondent, though served. ORDERfOrall (22nd July, 2011) Per I.M. Quddusi. J; 1. When the case was cailed out, neither anyone appears on behalf of the respondent nor any Vakalatnama has been filed on his behalf. Therefore, we proceed to decide this appeal ex-parte. 2. This appeal has been filed against the award of the Commissioner, Workmen's Compensation Act, Labour Court, Raigarh (in short "the Commissioner, Workmen's Compensation") dated 6.12.2006 passed in Case No.27AA/C Act/2006 (Fatal), dismjssing the daim petition of the appejiant/claimant. 3. This appeal involves a substantial question of law, which is as under: "Whether in absence of proof by employer, the exemption extended in accordance with Section 3(b)(ii) ofthe Workmen's Compensation Act» 1923 is avaiiable to employer and further, whether the provisions of Section 3(1)(b)(ii) of the Workmen's Compensation Act, 1923 would be applicabie in case where the injury has resulted in death? 4. Brief facts of the case are that deceased Thaneshwar Das Bairagi was son of the appellant/claimant, whereas the respondent is owner and possession holder of the car bearing registration No. BL-2 C- 2151. The respondent had engaged son of the appellant as driver for driving the said vehicle. The deceased was working with the respondent for the last one year and he was getting Rs.4,000/- per month as salary. On 20.4.2005, on the jnstruction of the respondent, the deceased had taken the family of the respondent to Kharsiya. Whjle returning from Kharsiya to Raigarh, due to coiiision with dumper near Village : Chaple, the son of the appejlant died. At the time of accident, the deceased was 24 years. Since he died during the course of employment under the respondent, therefore, the appellant being the dependent mother of the deceased filed a claim petition for a compensation of Rs.4,36,940/- under Section 10 of the Workmen's Compensation Act, 1923 (in short "the Act, 1923") 5. Learned Commissioner, Workmen's CompensatJon has^dismissed the claim petition, which was ex-parte agalnst the owner of the vehicle i.e. the respondent herein, on the ground that while driving the motor vehicje the deceased himseif was responsible for the accident as his car coiiided with the dumper standing on the road si'de and hence for dismi'ssi'ng the c!aim petitlon, assistance was taken from the provisions of Section 3(1)(b)(ii) ofthe Act, 1923. 6. Thou^h proceedings before the Commissioner, Workmen's Compensatlon were ex-parte against the owner of the vehicle, which was being driven by the deceased, but the owner had fiied his written statement denying the allegations in the claim petition. However, in the subsequent proceedjngs no one turned up for the owner/respondent and hence, proceedings were held ex-parte against him. 7. Before proceeding further, it is necessary to peruse the rejevant provisions of Section 3 of the Act, 1923, which are reproduced hereunder: "3. Employer's liability for compensation. - (1) If personal injury is caused to [an employee] by accident arising out of and in the course of his ^r- z' :.^' employment, his employer shall be Jiable to pay compensation in accordance with the provisions of thjs Chapter: Provided that the employer shall not be so liabte - (a) in respect of any injury which does not result in the total or partial disablement of the [employee] for a period exceeding [three] days; (b) in respect of any [injury, not resuiting in death [or permanent total disablement] caused by] an accident which is directly attributable to (i) the [employee] having been at the time thereof under the jnfluence of drink or drugs, or (ii) the willful disobedience of the [employee] to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of [employees], or (iii) the willful removal or disregard by the [employee] of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of [employee],"\ 8. Learned Commissioner, Workmen.'s Compensation has referred to sub-clause (ii) of Clause (b) of the proviso to sub-section (1) of Section 3, but that clause cannot be read independently, the same is to be read with proviso of sub-section (1), which reads that the employer shall not be so liable in respect of any injury not resulting in death or permanent total disablement caused by an accident, which is directly attributable to the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workman. 9. Therefore, the above sub-clause (ii) would be appljcable in case of injury not resulting in death. However, in the instant case, the injury has resulted in death, therefore, the above sub-clause would not be applicabie. Further, there was no order brought on record or even if the same was oral order, it has not been brought by evidence that any precautlon was directed to be taken. The services of the ^ ^•.^ ^ the deceased were being taken in the night hours and the acddent had taken place at midnight j.e. 1.30 am of 20th April, 2005. It has also not come on record as to whether the loaded dumper was standing on the road and parking Jights were on. Therefore, when the accident had taken place in the midnight resuiting in death of the driver/deceased, it could be due to fault on the part of the driver of the dumper who had parked the dumper on the way in the midnight. 10. All these aspects have not been considered by the Commissioner, Workmen's Compensation. Therefore, in our opinion, the matter requires reconsideration at the end of the Commissioner, Workmen's Compensation. 11. In view of the above, we allow this appeal in part, set aside the impugned award and remit the matter back to the Commissioner, Workmen's Compensation for deciding it afresh after affording reasonable opportunity of hearing to the parties, jn the (ight of the observations made above. Needless to mention that the parties shall also be aliowed to amend the pfeadings, adduce further evidence, fite documents or get the documents verified etc. and thereafter, fresh findings shaii be given by the Commissioner and award shall be passed afresh. 12. The appellant shali appear before the Commissioner, Workmen's Compensation on 24th August, 201 1. 13.LCR shall be sent back to the Commissioner without further delay. 14. No order as to costs. 15. Certified copy as per ruies. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^