IN THE RESIDENT MAGISTRATES’ COURT
AT BA
IN THE WESTERN DIVISION

WORKMEN’S COMPENSATION CASE NO.: 01 OF 2003

BETWEEN:

THE LABOUR OFFICER
APPLICANT

AND:

EMPEROR GOLD MINING CO. LIMITED
RESPONDENT

Counsel for the Applicant: Ms P. Prasad
Counsel for the Respondent: A. Sudhakar

Date of Hearing: 02nd June, 2008
Date of Judgment: 23rd June, 2008

JUDGMENT

[1]	This case has had a very long history which is as follows:

1.	The action was commenced on 06/05/03 and on 24/02/04 it was formally proved before Magistrate Mr Amani Rokotuinaviti at Tavua Magistrates’ Court and he delivered his decision on 30/03/04 and ordered the respondent to pay a sum of $24,000.00 under the Workmen’s Compensation Act. 

2.	On 25/05/04 the respondent filed a notice of motion to set aside the orders made on 30/03/04 and on 30/06/05 Mr Rokotuinaviti gave his ruling and he refused to set aside the orders made on 30/03/04.

3.	On 07/07/05 the respondent filed an appeal to the Lautoka High Court and the appeal was heard on 02/02/07 and a decision was delivered on 16/02/07. The appeal was allowed and the orders made on 30/03/04 were set aside and the case was adjourned for hearing at Ba Magistrates’ Court.

AGREED FACTS AND ISSUES

[2]	Both solicitors filed agreed facts and issues on 29/02/08 and on 29/04/08 they filed an amended agreed facts and issues.

Agreed Facts

[3]	The agreed facts are as follows:

i.	The deceased Rajend Kumar son of Manu Deo died on 30th of November 1997 aged 35.

ii.	A certain sum has been paid to the dependant (Sushma Kumar) on 28th January 1998.

iii.	The said sum was paid to the dependant under the Blue Shield Insurance Term Life Policy set up and paid for by Emperor to compensate dependants upon the death of a worker for the purposes of Workmen’s Compensation Act.

iv.	There was a deduction of $10.00 per fortnight from the wages of the deceased for the payment of premium for a Blue Shield insurance policy.

v.	This $10.00 per fortnight deduction that was made from the deceased’s wages was the premium for the Health Benefit Policy which had no death benefit.

vi.	The deceased was under a contract with Emperor to join any Health Scheme that is operated by, or on behalf of, the Company.

vii.	There were two insurance policies that Emperor had with Blue Shield Insurance. One was for Term Life Policy and the other was Health Benefit Policy.

Agreed Issues

[4]	The issues for determination are as follows:

i.	What amount of money was paid to the dependants of the deceased?

ii.	In the event it is held that Emperor has not paid the full $24,000.00 to the dependants under the Workmen’s Compensation Act, whether the death of the deceased was work related and whether Emperor is liable to pay under the Workmen’s Compensation Act.

ONUS OF PROOF

[5]	The respondent’s case is that it has paid the applicant a sum of $24,000.00 by way of compensation payable under the Workmen’s Compensation Act and therefore it was agreed that the onus of proof was on the respondent to prove the payment of the sum of $24,000.00. 

[6]	The respondent therefore commenced the case by calling Akesh Sharma a Human Resources Manager of the respondent company. He stated that he commenced employment in February 1997 and the deceased died on 30 November, 1997. He said that it was a practice and procedure of Emperor Gold Mine to take out a term life policy with Blue Shield to cover the employees in the event of the death of the workman. He further stated that employees were paid a sum of $24,000.00 under the policy regardless of whether the death was work related or whether it was natural death. The only exceptions were cases of employees committing suicide. He stated that upon a workman’s death Blue Shield Insurance Company would pay a sum of $24,000.00 to the respondent company and who would in turn pay out the same to the dependants of the deceased. He further stated that the term life policy with Blue Shield came to an end in 2003 but the respondent company continued to pay a sum of $24,000.00 until it closed operations in December 2006.

[7]	He stated that he remembered the death of the applicant’s husband Rajen Kumar and the claim was lodged with Blue Shield upon his death. He further stated that immediately upon the death of Rajen Kumar the respondent company paid a sum of $1,000.00 to his family as funeral expenses and he said that when the sum of $24,000.00 was received by the respondent company the deceased’s wife was paid a sum of $23,000.00 by way of a cheque issued by the respondent company. He identified the receipt dated 22/01/98 (which was tendered as Exhibit R1) and he pointed out the signature of the deceased’s wife Sushma Devi and his own signature and that of two other witnesses including one Mr Jan A. Ali who was the Senior Personnel Officer of the respondent company and who currently resides in New Zealand and he said that the other witness was Dr. S. Sharma who was a medical doctor for Emperor Gold Mine and that Dr. Sharma is currently in practice at Namaka Medical Centre, Nadi.

[8]	He refuted the claim that the deceased’s wife Sushma Devi was only paid a sum of $11,000.00 and further stated that Sushma Devi never complained to her that she only received a cheques of $11,000.00 and not the sum of $23,000.00.

[9]	In cross-examination he was only asked questions regarding the destruction of the policy in 1998 in a fire and whether a copy of the policy was ever requested from Blue Shield Insurance Company. 

APPLICANT’S EVIDENCE

[10]	The wife of the deceased Sushma Devi gave evidence and stated that Emperor Gold Mine paid compensation in the sum of $12,000.00. She stated that the Personnel Officer Mr Jan A. Ali telephoned her to collect that money and she received a sum of $11,000.00 and she said that at the time she received the money she was disturbed and was not in good frame of mind and she further stated that the amount was not stated in the receipt and that all the explanation of the contents was done by Mr Jan Ali. She also stated that she was unable to read as the light in the room was not sufficient and she said that Jan Ali mentioned to her that she was paid $11,000.00 now and that she was paid $1,000.00 earlier as funeral expenses. She also stated that apart from Jan Ali and the other two signatories in Exhibit R1 her father was also present. She admitted that Exhibit R1 was signed by her. 

WHETHER THE RESPONDENT HAS DISCHARGED THE BURDEN OF PROOF OF PAYMENT OF $24,000.00

[11]	Akesh Sharma was not cross-examined at all on the payment of the sum of $23,000.00 to Sushma Devi. It is elementary and standard practice for a party to put his case to the opposing witnesses and failure to do so would mean that the evidence goes unchallenged and it cannot be subsequently argued that the witness should not be believed. See Browne –v- Dunn (1893) 6R 67 in the speech of Lord Halsbury.

"My Lords, I have always understood that it you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with the witness". 

[12]	Upon production of the receipt as Exhibit R1 without any objections by the applicant the respondent had discharged the burden of proof cast on them and the burden thereafter shifted on the applicant to prove that the payment was not made. The applicant in my view was obliged to call Dr. S. Sharma who was a witness to the said document and his evidence was very crucial but the applicant decided not to call him as a witness. The applicant further stated that her father was present when the cheque was handed over to her but she decided not to call her father as her witness. 

CONCLUSION

[13]	In the circumstances I am satisfied that the respondent paid a sum of $24,000.00 to the dependants of the deceased Rajen Kumar having paid a sum of $1,000.00 upon his death as funeral expenses and a further sum of $23,000.00 on 28/01/98. Having decided that the respondent has paid a sum of $24,000.00 I believe I am not required to decide on whether the death of the deceased was work related or whether the respondent is liable to pay compensations under Workmen’s Compensation Act.

COST

[14]	I order that the applicant shall pay the respondent’s cost which shall be taxed if not agreed.

[Mohammed S. Khan]
Resident Magistrate

23rd June, 2008