LexTHE ORIENTAL INSURANCE COMPANY LTD. versus SORUMAI GOGOI AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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[2008) 2 S.C.R. 877
THE ORIENTAL INSURANCE COMPANY LTD.
A
v.
SORUMAI GOGOi AND ORS.
(Civil Appeal No. 1269 of 2008)
FEBRUARY 14, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Workmen Compensation Act, 1923 -
s.
3 -
Compensation - For death of a driver in the course of
employment - Driver missing with the vehicle - Criminal case c
registered against him for absconding with the vehicle - Not
· traced for seven years - Parents claiming compensation
under the Act for his death - Authority concerned granting
award raising presumption of his death u/s 108 of Evidence
. Act - High Court confirming the award - On appeal, 1held: D
Award set aside -
Occurrence of death during course of
employment not proved - Presumption uls 108 was not
invokable in view of the fact that the driver was a proclaimed
offender -
Motor Vehicles Act, 1988 - s .. 147 proviso -
Evidence Act, 1872 - s. 108.
E
'B' son of respondent Nos. 1 and 2 was appointed
as a driver of a vehicle by respondent No. 3. He reported
to his duty on 9.10.1996. Thereafter, he was not heard
either by the members of his family or the employer. A case
was registered and charge-sheet was filed against 'B' for F
having absconded with the vehicle .. ,.
Respondents 1 and 2 filed an application under
Workmen
Compensation
Act,
1923,
seeking
compensation for death of their son in course of his
employment.
The
Commissioner awarded ·the G
compensation holding that since 'B' had not been traced.
for more than seven years, his death is presumed u/s 108
of Evidence Act, 1872; and that his death occurred due to
injuries sustained in an accident in the course of
877
H
878
SUPREME COURT REPORTS
[2008] 2 S.C.R.
A employment. High Court confirmed the order of
..
Commissioner. Hence the present appeal by the
Insurance Company.
"'r
Allowing the appeal, the Court
I,~
l
HELD: 1.1 Workmen Compensation Act, 1923 was
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enacted to provide for payment of certain classes of
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employers to their workmen compensation for injury
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caused by accident.. The said Act does not provide for a
mandatory insurance policy to be taken by an employer.
c Section 147 of the Motor Vehicles Act, 1988, however,
mandatorily provides for obtaining insurance cover by the
owner of a vehicle. The sine qua non for invoking the
~-
proviso appended to Section 147 is that the employee
must be engaged in driving the vehicle. Death or bodily
D injury must occur arising out of or in the course of his
employment. The 1923 Act or the 1988 Act, therefore,
would be applicable only if the conditions precedent
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laid down thereunder are satisfied. [Paras 11, 15 and 16]
[883-E; 884-B, F, G]
E
1.2 There is nothing on record to show that the death
of the driver had occurred in an accident arising out of or
in course of employment .. If some miscreants have taken
away the driver along with the vehicle or has murdered
)-
him, it is an offence. It, except in certain situations, does
,_J
F not give rise to a presumption that the death had occurred
1
arising out or in the course of an employment. Some
evidence should have been adduced in that behalf. If the
version brought on records by the police was correct,
namely, he had himself run away with the vehicle and had
not been heard for a period of seven years, particularly,
G when he had been declared a proclaimed offender by a
Court of law, presumption under Section 108 of the
"-J
Evidence Act could have been invoked by the criminal
court for dropping the criminal case that he is dead·. In a
case of this nature, the said provisions could not have
H been invoked for the purpose of grant of compensation
,,
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THE ORIENTAL INSURANCE COMPANY LTD. v.
879
SORUMAI GOGOi AND ORS.
""'
under the 1923 Act without any other evidence having A
been brought on records. [Para 18] [884-G-H; 885-A-C]
2. Sections 108 and 109 of the Evidence Act can be
invoked in a legal proceeding where the death of a person
may be an issue. The Section does not say that
B
presumption would be applicable in all situations. It shall
v +. not apply in respect of a person who absconds from
•.
justice or evade a trial or is otherwise charged for
'
commission of a grave offence as he in that situation may
not communicate with his relations. Furthermore in a case
of this nature, it is also difficult to rely upon self serving c
statements made by the claimants that they had not heard
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